Demetrius Ross v. Greg Gossett ( 2022 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-1992
DEMETRIUS ROSS, et al.,
Plaintiffs-Appellees,
v.
GREG GOSSETT, et al.,
Defendants-Appellants.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 15-cv-309-SMY-MAB — Staci M. Yandle, Judge.
____________________
ARGUED APRIL 1, 2021 — DECIDED MAY 5, 2022
____________________
Before MANION, ROVNER, and ST. EVE, Circuit Judges.
ROVNER, Circuit Judge. The plaintiffs in this case are all in-
mates who were housed by the Illinois Department of Correc-
tions (the “IDOC”) at the Illinois River, Big Muddy River, or
Menard correctional centers during the period from April
2014 through July 2014. They alleged that the prison-wide
shakedowns conducted by the defendants violated their con-
stitutional and statutory rights. Their second amended com-
plaint, which is the operative one here, was brought under
2 No. 20-1992
42 U.S.C. § 1983 on behalf of the plaintiffs and all other simi-
larly situated inmates in those three correctional centers dur-
ing that time who were subjected to the shakedowns of their
prison cells by the tactical teams. Relevant to this appeal, they
allege that the planning and execution of the shakedowns vi-
olated the Eighth Amendment because it was designed to in-
flict pain and humiliation, as well as alleging conspiracy and
failure-to-intervene claims under the Eighth Amendment.
The plaintiffs allege that tactical team leaders of the IDOC
conducted institution-wide shakedowns of inmates’ cells at
those correctional centers pursuant to a common policy or
practice implemented, overseen, and encouraged by Depart-
ment supervisors.
The district court consolidated a number of cases into this
case, and the plaintiffs sought class certification, seeking to
certify a class of inmates incarcerated in 2014 at: Menard from
April 4-16, Illinois River from April 21-29, Big Muddy from
May 12-19, and Lawrence from July 7-11. They sought certifi-
cation only for claims against a discrete subset of the hun-
dreds of defendants in this case, encompassing only the 22
defendants who were involved in supervisory roles for the
shakedowns. The district court granted the proposed class
certification, and the appellants now challenge that decision
on appeal.
We review a district court’s class certification determina-
tion only for abuse of discretion. Gorss Motels, Inc. v. Brigadoon
Fitness, Inc., 29 F.4th 839, 843 (7th Cir. 2022); Bell v. PNC Bank,
Nat’l Ass’n, 800 F.3d 360, 373 (7th Cir. 2015). In determining
whether the court abused its discretion, we consider whether
the court misunderstood the applicable law or made clear er-
rors of fact. Id.No. 20-1992 3
I.
We begin, then, with the facts as set forth by the district
court in its determination. See Dist. Ct. Order at 1–4. In 2014,
the IDOC’s Chief of Operations, Joseph Yurkovich, and Dep-
uty Chief of Operations, Michael Atchison, decided to execute
prison-wide shakedowns for purposes of sanitation and to
discover and remove contraband. Toward that end, they
formed tactical teams supervised by senior IDOC officials, in-
cluding head administrators from each of the prisons. They
discussed the plan with the Statewide Tactical Commander,
David White, and the Southern Regional Commander, Timo-
thy McAllister, who created operations orders outlining the
shakedown schedule and staffing needs.
Prior to the shakedown at each prison, White and/or
McAllister discussed the actual operation of the shakedown
with the prison warden and tactical commanders, and con-
ducted three separate briefings. First, they would discuss the
plan with tactical team commanders, wardens, and assistant
wardens, including specific details as to how duties would be
performed, what inmates would wear, and how inmates
would be handcuffed, as well as discussing how tactical team
members would conduct themselves and handle inmates.
Next, the tactical team commanders and the assistant com-
manders discussed the shakedown plan with the members of
the tactical team. Finally, the entire group would come to-
gether and discuss the plan, including the wardens, and
McAllister or White.
That coordinated execution extended to the uniforms for
the tactical team, and the sequence of events for the shake-
down. Tactical team officers wore uniforms which contained
no identifying insignia or name badges, thus making
4 No. 20-1992
identification of individual team members difficult, and
which consisted of an orange jumpsuit, vest, gloves and hel-
met with face shield. Based on that distinctive uniform, the
tactical teams were colloquially referred to as “Orange
Crush” by inmates.
The shakedown itself proceeded in a deliberate, preor-
dained manner, from the entry of the officers into the cell
units all the way to the return of the inmates to their cells. The
plaintiffs and defendants both agree that the shakedowns oc-
curred and were executed according to a uniform plan under
their supervision. They diverge, however, in the description
of that plan.
As the court recognized, the plaintiffs describe the follow-
ing sequence of events in the shakedowns. First, tactical team
officers would enter the living units in a cacophonous man-
ner, yelling loudly and banging their batons on the bars and
railings of the unit. The tactical officers would then instruct
inmates to strip and remove their clothing, and would order
a “reverse” strip search, in which inmates would be required
to manipulate their genitals and buttocks and then to put their
hands into their mouths—a strip search sequence which the
plaintiffs describe as demeaning and unsanitary.
Inmates were then commanded to put on a shirt, pants,
and shoes, but were not allowed to don underwear. They
were handcuffed in a position that is particularly painful and
uncomfortable, in which their hands were behind their backs
with their thumbs up and palms facing out. They were then
marched to a holding area in a “nuts to butts” fashion, in
which the genitals of inmates would come into contact with
the backside of the inmate in front of them. They maintain
that the tactical team members routinely pushed and shoved
No. 20-1992 5
inmates to ensure that such physical contact occurred. The
holding areas included dining halls, gyms and chapels, and
they were forced to remain in that holding area, handcuffed,
either seated with their heads down or standing facing a wall,
for 1 to 4 hours while the cells were searched. They were then
returned to their cells in the same physically intrusive man-
ner.
II.
Pursuant to Federal Rule of Civil Procedure 23(a), “[o]ne
or more members of a class may sue or be sued as representa-
tive parties on behalf of all members only if: (1) the class is so
numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typ-
ical of the claims or defenses of the class; and (4) the repre-
sentative parties will fairly and adequately protect the inter-
ests of the class.” Moreover, as relevant here, the plaintiffs
also sought to demonstrate that “questions of law or fact com-
mon to class members predominate over any questions affect-
ing only individual members, and that a class action is supe-
rior to other available methods for fairly and efficiently adju-
dicating the controversy.” Fed. R. Civ. P. 23(b)(3). The appel-
lants do not take issue with the district court’s recitation of the
facts, but argue that the district court erred in determining
that the requirements of commonality, typicality, and pre-
dominance, were met.
A.
As both the district court and the appellants recognize, in
order to satisfy commonality, the plaintiffs’ claim must “de-
pend on a common contention” and “[t]hat common
6 No. 20-1992
contention … must be of such a nature that it is capable of
classwide resolution—which means that determination of its
truth or falsity will resolve an issue that is central to the va-
lidity of each one of the claims in one stroke.” Wal-Mart Stores,
Inc. v. Dukes, 564 U.S. 338, 350 (2011). The district court held
that the plaintiffs satisfied that requirement because they al-
leged that the defendants acted pursuant to a common policy
and implemented the same or similar procedures at each of
the four institutions, and that the challenge was to the consti-
tutionality of that common plan as enacted. Accordingly, the
court held that the claims arise under the same constitutional
requirements and require resolution of key common factual
and legal questions, specifically: “whether Defendants devel-
oped and carried out a uniform policy and practice that had
the effect of depriving the putative class members of their
Eighth Amendment right to be free from cruel and unusual
punishment; whether the shakedowns were executed in the
manner Defendants contend or as Plaintiffs claim; whether
Defendants engaged in a conspiracy to deprive the putative
class members of their constitutional rights through the
shakedowns; and whether the Defendants knew of, ap-
proved, facilitated and/or turned a blind eye to the alleged
unconstitutional shakedowns.” Dist. Ct. Order at 7. The court
held that those questions would generate common answers,
and that, “[i]n particular, the answer to whether Defendants
developed and carried out a uniform policy and practice that
had the effect of depriving the putative class members of their
Eighth Amendment right to be free from cruel and unusual
punishment does not require individualized consideration
No. 20-1992 7
and will resolve the liability aspect of this litigation and for
each of the class claims.” Id.The appellants argue that Wal-Mart requires a different re-
sult. They contend that the plaintiffs may be able to establish
commonality by showing the existence of an unconstitutional
policy, but that under the reasoning in Wal-Mart the plaintiffs
need to present “significant proof” of that policy, including
its unconstitutional aspects, at the class certification stage.
They assert that the plaintiffs failed to present significant
proof that “the policy existed as plaintiffs claimed it did.” The
proof required by the appellants was not that a common pol-
icy and plan existed—they concede it did—but that the policy
which existed was the one alleged by the plaintiffs with its
unconstitutional provisions rather than the one alleged by
them. The district court properly rejected that argument, rec-
ognizing that the analysis sought by the appellants is appro-
priate in an examination of the merits, but is not the proper
focus in a class certification determination.
Wal-Mart itself is instructive as to that distinction. In that
case, the plaintiffs, current and former female employees of
Wal-Mart, alleged that the discretion exercised by their local
supervisors over pay and promotion matters violated Title
VII by discriminating against women. Id. at 342. In contrast to
the present case, in Wal-Mart it was uncontested that there
was no written or explicit corporate policy against the ad-
vancement of women. In fact, the existence of any uniform
policy was itself contested. The Court described the basic the-
ory of the plaintiffs’ case as “that a strong and uniform ‘cor-
porate culture’ permits bias against women to infect, perhaps
subconsciously, the discretionary decisionmaking of each one
of Wal-Mart’s thousands of managers—thereby making
8 No. 20-1992
every woman at the company the victim of one common dis-
criminatory practice.” Id. at 345. Accordingly, the Court held
that proof of commonality necessarily overlapped with the
merits as to the contention that Wal-Mart engaged in a pattern
or practice of discrimination, in that the answer to the crucial
question as to why each class member was disfavored was in-
capable of a common answer absent “some glue holding all
the alleged reasons for all those decisions together.” Id. at 352.
(emphasis in original). That glue, the Court held, could be
provided by “significant proof” that Wal-Mart operated un-
der a general policy of discrimination. Id. at 353. Plaintiffs’ ev-
idence, however, demonstrated only a corporate policy of al-
lowing discretion by local supervisors over employment mat-
ters. Id. at 355. The Court recognized that “[o]n its face, of
course, that is just the opposite of a uniform employment
practice that would provide the commonality needed for a
class action; it is a policy against having uniform employment
practices.” Id. Therefore, the evidence by the plaintiffs was in-
sufficient to demonstrate commonality.
In contrast, the evidence that was lacking in Wal-Mart—
that the alleged discriminatory actions were undertaken pur-
suant to a uniform policy—is not only present in this case, it
is undisputed. The appellants concede that the shakedowns
were conducted according to a uniform plan created and im-
plemented by the appellants, and that the plan was executed
in a uniform manner under their supervision. There is no
need for the plaintiffs to provide “significant proof” of the ex-
istence of a uniform policy precisely because its existence is
conceded. The only dispute is the content of that uniform pol-
icy—specifically, whether that uniform policy reflected the
version alleged by the plaintiffs or the one alleged by the de-
fendants. That is a merits question, however. Either way, the
No. 20-1992 9
issue as to the constitutionality of the policy is capable of a
common answer applicable to all of the defendants. If the pol-
icy is as the defendants allege and those provisions are con-
stitutional, then the defendants will be entitled to a judgment
in their favor. If the policy is as the plaintiffs allege and they
can demonstrate that those uniform provisions are unconsti-
tutional, then the plaintiffs will succeed. Either way, resolu-
tion of the question will provide a common answer as to the
claims of the putative class that the shakedown policy created
and implemented by the supervisors violated their constitu-
tional rights. The district court therefore properly concluded
that the appellants’ arguments as to the content of the uniform
policy were not relevant to the class certification context, but
rather would be appropriate in a motion for summary judg-
ment. The district court did not abuse its discretion in finding
that the commonality requirement was met on these facts.
And because the appellants’ typicality argument here mir-
rored the arguments as to commonality, there is no abuse of
discretion as to that holding either.
B.
That leaves the remaining challenge by the appellants,
which is to the district court’s determination that the predom-
inance factor was met. One of the provisions of Rule 23(b)
must be satisfied in order to maintain a class action, and the
district court held that Rule 23(b)(3) had been met. See Fed. R.
Civ. P. 23. That provision requires the court to find that “ques-
tions of law or fact common to class members predominate
over any questions affecting only individual members, and
that a class action is superior to other available methods for
10 No. 20-1992
fairly and efficiently adjudicating the controversy.” Id. at
23(b)(3).
The Rule 23(b)(3) standard “requires a showing that ques-
tions common to the class predominate, not that those ques-
tions will be answered, on the merits, in favor of the class.”
Amgen Inc. v. Connecticut Ret. Plans & Tr. Funds, 568 U.S. 455,
459 (2013); see also Gorss Motels, 29 F.4th at 845 (“it is the
method of determining the answer and not the answer itself
that drives the predominance consideration”). As the district
court recognized, the predominance requirement is met
“when common questions represent a significant aspect of a
case and can be resolved for all members of a class in a single
adjudication.” Dist. Ct. Order at 10; Gorss Motels, 29 F.4th at
844. “An individual question is one where members of a pro-
posed class will need to present evidence that varies from
member to member; a common question is one where the
same evidence will suffice for each member to make a prima
facie showing or the issue is susceptible to generalized, class-
wide proof.” Gorss Motels, 29 F.4th at 843–44; Tyson Foods, Inc.
v. Bouaphakeo, 577 U.S. 442, 453 (2016).
Citing numerous cases, the district court recognized that
courts routinely have found that common questions predom-
inate where the case claims the existence of a widespread or
uniform practice. Dist. Ct. Order at 11. The court held that the
issues as to liability are common and predominate in this case,
and that any variation in the particular experiences of class
members would primarily impact the type and amount of re-
coverable damages, and would not defeat predominance. Id.at 11–12, citing Tyson Foods, 577 U.S. at 453 (“[w]hen one or
more of the central issues in the action are common to the
class and can be said to predominate, the action may be
No. 20-1992 11
considered proper under Rule 23(b)(3) even though other im-
portant matters will have to be tried separately, such as dam-
ages or some affirmative defenses peculiar to some individual
class members”)(internal quotation marks omitted). The court
also held that a class action was superior to other available
methods for the fair and efficient adjudication of the contro-
versy, under Rule 23(b)(3). Because of the number of putative
class members and the common questions of law and fact that
predominate as to those defendants, the court held that a class
action would serve the economies of time, effort and expense
and prevent inconsistent results. Id. at 12.
The appellants argue that the predominance requirement
is not met because individual issues would dominate and
would require thousands of mini-trials in order to determine
which component of the policy each inmate was subjected to.
They further assert that supervisor liability cannot be found
unless the supervisor, with knowledge of the subordinate’s
conduct, approves the conduct, and therefore that supervisor
liability claims are less appropriate for class-wide resolution.
Both of these arguments, however, stem from the same mis-
understanding of the issues presented in the claims of the pu-
tative class against these 22 defendants. The plaintiffs did not
seek class status as to each and every defendant involved in
the shakedown. The proposed class in this case relates only to
the claims against the 22 supervisors responsible for the crea-
tion and implementation of the uniform shakedown plan, and
the allegations are that the plan itself utilized measures de-
signed to inflict pain or humiliation with no penological pur-
pose, and therefore that the defendants violated the Eighth
Amendment in their actions in imposing those conditions on
the inmates. The defendants have maintained throughout this
action that the shakedown plan was imposed in the same
12 No. 20-1992
manner at each institution, that safeguards were in place to
ensure that everyone was aware of the plan, and that super-
visors were present to ensure uniform execution of it. And the
plaintiffs point to the consistent survey responses from 300
tact team members stating that they saw no member of the
tact team deviate from the common plan that had been com-
municated to them. There is no dispute at this point in the lit-
igation, then, that the shakedowns were conducted pursuant
to a uniform plan.
In its memorandum in opposition to the motion for class
certification in the district court, the appellants set forth the
three constitutional claims common to each putative class
member alleged by the plaintiffs as follows: “(1) Defendants
designed and implemented procedures to be followed during
all four shakedowns that were abusive and humiliating, ra-
ther than in furtherance of any proper penological purpose,
in violation of the Plaintiffs’ Eighth Amendment rights,
(2) Defendants reached an agreement to deprive the class of
their constitutional rights and to protect one another from li-
ability for that deprivation, and (3) Defendants knew that the
class’s Eighth Amendment rights were about to be violated
and failed to intervene to prevent the constitutional violation.
Doc. 491 at 14. Nothing in those allegations requires mini-tri-
als, let alone thousands of them.
The focus of each claim is on the requirements of the uni-
form plan that was used in the shakedowns, and the dispute
at trial is between the two parties’ different versions of the
shakedown plan. We recognized in Gorss that similar claims
of uniform behavior, such as those involving a uniform form
or standardized agreement, are the type of claims that are
amenable to class-wide proof and therefore capable of
No. 20-1992 13
satisfying the predominance inquiry. 29 F.4th at 844. Here, the
mini-trials envisioned by the appellants relate to the conduct
of individual officers with respect to individual inmates, but
class status was not sought as to those defendants. The class
action relates only to the supervisors, and the claims relate
only to their actions with respect to the design and implemen-
tation of the allegedly-unconstitutional policy.
For that reason, the appellants’ argument that supervisory
liability cases are poorly suited to classwide resolution is sim-
ilarly flawed. The appellants argue that supervisor liability is
especially inappropriate where the evidence shows at worst
that non-supervisory defendants departed from the policy set
by the supervisors, because of the need for individualized ev-
idence of the supervisor’s knowledge and approval of the
non-supervisor’s actions. But that is the opposite of the alle-
gations here. The class action against the supervisors here is
decidedly not based on aberrant actions by rogue non-super-
visors. It is premised entirely on the constitutionality of the
procedures that were part of the plan designed and imple-
mented by the supervisors, which allegedly were planned to
cause pain or humiliation with no penological justification.
Therefore, the argument as to the need for individual evi-
dence for supervisor liability is inconsistent with the claims
asserted here (and in any case was not itself raised in the dis-
trict court.) The type of failure-to-intervene claims that would
render supervisor liability dependent on individual facts are
not present here, and the mere possibility of other legal theo-
ries or individual cases is insufficient to defeat predominance.
Even as to damages, the issue would be which of the un-
constitutional actions the inmate experienced, but given the
agreement that the shakedowns were carried out pursuant to
14 No. 20-1992
the same procedures, that issue is as likely to be resolved by a
determination of the uniform practice at the particular facility
that day, rather than one reliant on testimony from an indi-
vidual. Individual testimony would be necessary only as to
claims that individuals acted in a manner inconsistent with
the uniform policy and in an unconstitutional manner, but
those claims are not asserted as to these defendants and this
putative class. Even assuming a damages assessment would
require individual evidence, however, the court did not abuse
its discretion in determining that the common issues as to lia-
bility establish predominance. See Tyson Foods, 577 U.S. at
453–54 (“[w]hen one or more of the central issues in the action
are common to the class and can be said to predominate, the
action may be considered proper under Rule 23(b)(3) even
though other important matters will have to be tried sepa-
rately, such as damages or some affirmative defenses peculiar
to some individual class members”) (internal quotation marks
omitted); Arreola v. Godinez, 546 F.3d 788, 801 (7th Cir. 2008)
(holding that the need for individual damages determination
did not require denial of the motion for class certification).
Finally, with respect to predominance, the appellants ar-
gue that the district court failed to engage in the proper in-
quiry in that the court did not discuss the elements of the
claims and apply the inquiry to those elements. See Santiago
v. City of Chicago, 19 F.4th 1010 (7th Cir. 2021). But the district
court in fact addressed the only arguments they made in the
district court as to the elements of the claims. In the district
court, they argued that predominance requires an examina-
tion of the substantive elements of the claims, and that the dif-
fering testimony of the putative class members and the plain-
tiffs dissolved their claim as to the substance of the uniform
practice. They then argued that without that uniform practice
No. 20-1992 15
as alleged by the plaintiffs, the class members would have to
prove individualized facts to demonstrate the elements of li-
ability. They have repeated that argument to this court, and
expanded it with examples, such as arguing that individual
evidence would be required as to whether handcuffs were too
tight for each individual inmate. That argument again as-
sumes that the claims are based on the actions of individual
officers; they are not. For instance, as to the handcuffing, the
claim is that the plan unconstitutionally mandated the use of
a particularly painful handcuff position that had no corre-
sponding penological benefit. The evidence as to that claim
would relate to what handcuffing method was mandated,
and what the reasons were for its use. It is a common question
not an individualized one. The appellants’ argument once
again is based on the notion that the plaintiffs had failed to
establish that the uniform practice was as they alleged, and
that any unconstitutionality would stem from actions of indi-
viduals.
As we have repeatedly emphasized, however, the class
certification analysis is not an examination of the merits:
“’a court weighing class certification must walk
a balance between evaluating evidence to deter-
mine whether a common question exists and
predominates, without weighing that evidence to
determine whether the plaintiff class will ulti-
mately prevail on the merits.’ Bell v. PNC Bank,
N.A., 800 F.3d 360, 377 (7th Cir. 2015) (emphases
added). We recognize the contradiction built
into the standard. The judge must examine the
evidence for its cohesiveness while studiously
ignoring its bearing on merits questions[.]”
16 No. 20-1992
Gorss, 29 F.4th at 845, quoting In re Allstate Corp. Sec. Litig., 966
F.3d 595, 603 (7th Cir. 2020). Here, the court drew the proper
line. It addressed the challenge to the elements of the claims
raised by the defendants, and recognized that all of the claims
asserted in this case were claims based upon the responsibil-
ity of these defendants for the implementation of a uniform
plan. The claims depend upon the ability of the plaintiffs to
establish that the shakedowns were conducted pursuant to
the uniform plan as they describe it and that those plans were
themselves unconstitutional. The argument by the defendant
that the plaintiffs cannot prove that the plan was as they al-
leged addresses their ability to succeed on the merits, not the
propriety of class certification. The court properly limited the
inquiry here to whether a common question exists and pre-
dominates, not whether the plaintiffs would prevail as to that
common question. The court did not abuse its discretion in
holding that the requirements of Rule 23 were met as to the
class claims limited to this particular group of defendants.
Accordingly, the decision of the district court is
AFFIRMED.