Elizabeth M. v. Ron D. Ross ( 2006 )


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  •                       United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 05-2750
    ___________
    Elizabeth M., et al., on behalf of        *
    themselves and on behalf of others        *
    similarly situated,                       *
    *
    Plaintiffs - Appellees,             * Appeal from the United States
    * District Court for the
    v.                                  * District of Nebraska.
    *
    Nancy Montenez, et al.,                   *
    *
    Defendants - Appellants.            *
    ___________
    Submitted: February 15, 2006
    Filed: August 15, 2006
    ___________
    Before LOKEN, Chief Judge, BOWMAN and SMITH, Circuit Judges.
    ___________
    LOKEN, Chief Judge.
    This is a putative class action filed by sixteen present and former female
    patients at Nebraska’s three residential mental health facilities -- the Lincoln Regional
    Center (LRC), the Norfolk Regional Center (NRC), and the Hastings Regional Center
    (HRC). Plaintiffs seek declaratory and injunctive relief against the Director of the
    Nebraska Department of Health and Human Services and the Chief Executive Officers
    and the Clinical Directors of the three facilities, all sued in their official capacities.
    The complaint alleges that these seven defendants are violating plaintiffs’ federal
    constitutional and statutory rights by failing to protect them from sexual and physical
    assaults by male patients and staff, and by failing to adequately treat their mental
    illnesses and developmental disabilities. The district court certified a single class for
    these disparate claims:
    All women who were subjected to rape, sexual assault, sexual
    harassment, sexual exploitation, and physical assault, while in the care
    and custody of Nebraska Health and Human Services System (NHHSS)
    as residents at one or more of the NHHSS residential mental health
    facilities; and all women who are currently, or in the future will be, in the
    care and custody of the NHHSS and placed as residents at one or more
    of the NHHSS residential mental health facilities.
    We agreed to review defendants’ interlocutory appeal of this order under Rule 23(f)
    of the Federal Rules of Civil Procedure. See generally Prado-Steiman v. Bush, 
    221 F.3d 1266
    , 1271-77 (11th Cir. 2000). We conclude plaintiffs failed to satisfy the
    requirements of Article III and Rule 23, and the district court abused its discretion in
    presuming these requirements were satisfied. See In re Milk Prods. Antitrust Litig.,
    
    195 F.3d 430
    , 436 (8th Cir. 1999), cert. denied, 
    529 U.S. 1038
    (2000) (standard of
    review). We therefore vacate the class certification order.
    I.
    The named plaintiffs are women who are or were involuntarily confined at
    LRC, NRC, and/or HRC. One plaintiff, Caroline C., was the named plaintiff in a prior
    class action alleging failure to protect patients at HRC from assaults by male patients.
    The district court certified a class consisting of all women who had been sexually
    assaulted or raped by male patients at HRC plus all current and future residents of that
    facility. Caroline C. v. Johnson, 
    174 F.R.D. 452
    (D. Neb. 1996). The court
    subsequently approved a consent decree that went far beyond patient safety issues,
    committing state officials to detailed provisions mandating “the development and
    implementation of appropriate mental health treatment for class members.” Caroline
    -2-
    C. v. Johnson, Case No. 4:CV95-22 (D. Neb. Oct. 29, 1998). That decree expired by
    its own terms on December 31, 2000. In this action, plaintiffs expanded their causes
    of action to include both safety and treatment claims and broadened the purported
    class to include women at all three regional facilities. Plaintiffs urged the district
    court to exercise jurisdiction under the expired Caroline C. consent decree, but the
    court denied the request. That ruling is not before us.
    Ten plaintiffs allege they were sexually assaulted by facility employees, nine
    by the same staff member at LRC and one by a different staff member at NRC. One
    plaintiff alleges she was sexually harassed by a staff member at NRC. Five plaintiffs
    allege they were sexually assaulted by male residents at LRC and NRC. Five
    plaintiffs allege they were denied adequate mental health trauma treatment at one or
    more of the facilities. Three plaintiffs allege they were denied adequate trauma
    treatment after discharge. All plaintiffs allege that defendants failed to provide:
    appropriate and effective nursing care, medical care, academic
    instruction, occupational therapy, social, and independent living skills
    training, recreational therapy, vocational training and rehabilitative,
    psychological testing, psychiatric care, individualized training,
    meaningful physical education, discharge planning and the provision for
    a system of community-based mental health residential facilities
    designed to meet the individual needs of Plaintiffs.
    Plaintiffs allege violations of their rights under “the First, Fourth, Fifth, Ninth, and
    Fourteenth Amendments of the U.S. Constitution,” Title II of the Americans with
    Disabilities Act, 42 U.S.C. §§ 12101, et seq., and Section 504 of the Rehabilitation
    Act, 29 U.S.C. § 794.1
    1
    Title II and § 504 prohibit public entities from denying qualified individuals
    with services and programs on account of their disabilities. Though § 504 is limited
    to state and local programs receiving federal assistance, the statutes are “similar in
    substance.” Randolph v. Rodgers, 
    170 F.3d 850
    , 858 (8th Cir. 1999).
    -3-
    Plaintiffs’ class action complaint requests sweeping injunctive relief which, if
    granted, would require the district court to mandate and monitor detailed programs
    governing nearly every facet of the State’s operation of the three residential facilities
    -- patient risk assessment, placement, and discipline; staff leadership structure; prehire
    procedures and training for staff; sex education and sexual expression policies;
    creation of “all women safe units” and a “Woman’s Council” selected by class
    members at each facility; a “trauma treatment model” that includes “biological
    (medications), psychological, [and] psychosocial” components; and programs for
    “mental health treatment and rehabilitation consistent with the individual needs” of
    each class member. The complaint also seeks a declaratory judgment that defendants
    have violated plaintiffs’ constitutional and statutory rights.
    II.
    By certifying a single class action to litigate this broad array of claims and
    prayers for relief, the district court has essentially conferred upon itself jurisdiction
    to assert control over the operation of three distinct mental health facilities, a major
    component of Nebraska state government. A federal court may not lightly assume this
    power. “Where, as here, the exercise of authority by state officials is attacked, federal
    courts must be constantly mindful of the special delicacy of the adjustment to be
    preserved between federal equitable power and State administration of its own law.”
    Rizzo v. Goode, 
    423 U.S. 362
    , 378 (1976) (quotation omitted); see Angela R. v.
    Clinton, 
    999 F.2d 320
    , 326 (8th Cir. 1993) (“Federal courts operate according to
    institutional rules and procedures that are poorly suited to the management of state
    agencies.”). Moreover, as the sweeping consent decree in Caroline C. illustrates, this
    concern is heightened in the class action context because of the likelihood that an
    order granting class certification “may force a defendant to settle rather than incur the
    costs of defending a class action and run the risk of potentially ruinous liability.”
    Advisory Committee Notes to 1998 Amendments adopting Rule 23(f). Consequently,
    before certifying a class seeking broad injunctive relief against a state agency, a
    -4-
    district court must ensure that it has Article III jurisdiction to entertain each claim
    asserted by the named plaintiffs. See Rivera v. Wyeth-Ayerst Labs., 
    283 F.3d 315
    ,
    319 n.6 (5th Cir. 2002); 
    Prado-Steiman, 221 F.3d at 1279-80
    . And the court must
    conduct a “rigorous analysis” to ensure that the prerequisites of Rule 23 are satisfied.
    Gen. Tel. Co. of the S.W. v. Falcon, 
    457 U.S. 147
    , 161 (1982).
    III.
    Plaintiffs’ complaint seeks only equitable relief because Nebraska’s Eleventh
    Amendment immunity would bar damage claims in federal court against these
    defendants acting in their official capacities. See Murphy v. State of Arkansas, 
    127 F.3d 750
    , 754 (8th Cir. 1997). To have Article III standing to seek prospective relief,
    plaintiffs must show they are likely to suffer future injury that will be remedied by the
    relief sought. James v. City of Dallas, 
    254 F.3d 551
    , 563 (5th Cir. 2001), cert. denied,
    
    534 U.S. 113
    (2002). “Past exposure to illegal conduct” is not enough absent present
    adverse effects. City of Los Angeles v. Lyons, 
    461 U.S. 95
    , 102 (1983) (quotation
    omitted); see Steel Co. v. Citizens for a Better Environment, 
    523 U.S. 83
    , 108-09
    (1998). For this reason, a claim for equitable relief altering the custodial conditions
    at a state institution normally becomes moot when the plaintiff is no longer subject to
    the challenged conditions. See Inmates of Lincoln Intake & Detention Facility v.
    Boosalis, 
    705 F.2d 1021
    , 1023-24 (8th Cir. 1983). Therefore, defendants argue,
    former patients who allege they were victims of assaults or inadequate treatment in the
    past are not proper members of the class. On this record, we agree.
    When the district court certified the class, fourteen of the sixteen named
    plaintiffs no longer resided at any of the three facilities. Nearly all the relief sought
    in the complaint addresses future conditions within the facilities. These fourteen
    plaintiffs, like other class members who no longer reside at the facilities, are not likely
    to suffer a future injury that will be remedied by this relief unless they are
    recommitted to one of the facilities, in which case they would enjoy the benefits of
    -5-
    any injunctive relief that may be granted as members of the class of future residents.
    Moreover, the presence of former residents in the class poses a substantial risk to the
    “efficiency and economy of litigation which is a principal purpose” behind the class
    action device. Gen. Tel. 
    Co., 457 U.S. at 159
    . Adjudication of their claims for a
    declaratory judgment that prior assaults violated their rights is not necessary to the
    claims for injunctive relief but threatens to violate the State’s Eleventh Amendment
    immunity from damage claims. In these circumstances, the district court abused its
    discretion by including present and former residents in a single, essentially
    unmanageable class.2
    The former residents also claim constitutional and statutory rights to adequate
    mental health treatment after their discharge from defendants’ facilities. As to this
    claim, they obviously have a present interest sufficient to confer standing to seek
    injunctive relief. But the claim of a federal constitutional right to non-custodial
    mental health treatment is highly dubious and has little in common with the
    constitutional claims of present residents. See DeShaney v. Winnebago County Dept.
    of Social Servs., 
    489 U.S. 189
    , 199-201 (1989). Any claim for post-discharge relief
    under state law would be barred by the State’s Eleventh Amendment immunity. See
    Pennhurst State School & Hosp. v. Halderman, 
    465 U.S. 89
    (1984). Thus, the former
    residents’ right to class-wide post-discharge relief turns on their claims to a right to
    such treatment under Title II of the ADA or § 504 of the Rehabilitation Act. Their
    complaint and class certification motion papers were silent as to the specific statutory
    or regulatory basis for these claims. In these circumstances, the district court abused
    its discretion (i) in combining former residents’ claims for post-discharge relief with
    2
    We reject plaintiffs’ contention that this is a case where a named plaintiff may
    represent the class despite the loss of a personal stake in the relief sought because the
    claim is "capable of repetition, yet evading review." United States Parole Comm’n
    v. Geraghty, 
    445 U.S. 388
    , 398 (1980). As the remaining two named plaintiffs
    illustrate, long-term residents with a present stake in the relief sought are available to
    better represent the class of present and future residents.
    -6-
    present residents’ disparate claims into a single, unmanageable class action, and (ii)
    in ruling without discussion that the named plaintiffs who are former residents
    sustained their burden of demonstrating that all Rule 23 requirements are satisfied for
    the certification of a separate class for post-discharge claims.
    IV.
    When the class was certified, Caroline C. and Susan Z. were the only named
    plaintiffs residing in one of the three mental health facilities and therefore eligible to
    represent a class of present and future residents seeking equitable relief to improve
    conditions within the facilities. See East Texas Motor Freight Sys. v. Rodriguez, 
    431 U.S. 395
    , 403 (1977) (“A class representative must be part of the class and possess the
    same interest and suffer the same injury as the class members.”). Our remaining task
    is to determine whether these two named plaintiffs satisfy all the requirements of Rule
    23(a) and Rule 23(b)(2) with respect to the causes of action asserted. Rule 23(a)
    provides that no class action may be certified unless the court determines:
    (1) the class is so numerous that joinder of all members is impracticable,
    (2) there are questions of law or fact common to the class, (3) the claims
    or defenses of the representative parties are typical of the claims or
    defenses of the class, and (4) the representative parties will fairly and
    adequately protect the interests of the class.
    If the requirements of Rule 23(a) are met, Rule 23(b)(2) provides that a non-opt-out
    class may be certified if “the party opposing the class has acted or refused to act on
    grounds generally applicable to the class, thereby making appropriate final injunctive
    relief or corresponding declaratory relief with respect to the class as a whole.”3
    3
    The district court erred in also certifying the non-opt-out class under Rule
    23(b)(1)(B) without considering the impact that adjudication of the broad prayer for
    declaratory relief might have on class members’ damage claims for sexual and
    -7-
    The Failure To Protect Claims. The complaint alleges that Caroline C. was
    sexually assaulted by a male resident of LRC, that defendants were aware such
    conduct was occurring but took no corrective actions, and that this failure to protect
    was part of “a pattern or series of incidents of unconstitutional conduct.” Susan Z.,
    the other resident named plaintiff, does not allege an assault claim.
    When a person is involuntarily confined in a state mental health facility, the
    State has a duty imposed by the Substantive Due Process Clause of the Fourteenth
    Amendment to provide a “reasonably safe environment.” Beck v. Wilson, 
    377 F.3d 884
    , 890 (8th Cir. 2004). To recover under § 1983 for a breach of that constitutional
    duty, a plaintiff must prove that a state official either intentionally violated the duty
    (such as criminal assault by a staff member) or was deliberately indifferent to a known
    excessive risk to patient safety (such as assault by another patient). See Revels v.
    Vincenz, 
    382 F.3d 870
    , 874-75 (8th Cir. 2004). In addition, when the claim is, as
    here, against the institution’s supervisors for inadequate safety policies, plaintiff must
    prove (i) that an employee violated her due process right to safety, (ii) that
    institutional policies led to the violation, and (iii) that the policies were adopted with
    deliberate indifference to their known or obvious consequences. See Pietrafeso v.
    Lawrence County, No. 05-1038, slip op. at 6-7 (8th Cir. Jul. 11, 2006), applying
    Board of County Comm’rs v. Brown, 
    520 U.S. 397
    , 407 (1997).
    Though class certification is not the time to address the merits of the parties’
    claims and defenses, the “rigorous analysis” under Rule 23 must involve consideration
    of what the parties must prove. See Amchem Prods., Inc. v. Windsor, 
    521 U.S. 591
    ,
    622-23 & n.18 (1997); Coopers & Lybrand v. Livesay, 
    437 U.S. 463
    , 469 & n.12
    (1978). Here, that prompts the following Rule 23 concerns:
    physical assaults. The Supreme Court has cautioned against “adventurous application
    of Rule 23(b)(1)(B).” Ortiz v. Fibreboard Corp., 
    527 U.S. 815
    , 845 (1999).
    -8-
    • Though plaintiffs’ assault claims focus on the institutional policies defendants
    adopted in their official capacities, each assault claim initially requires proof that
    another employee of one residential facility violated that class member’s substantive
    due process right to safety. The presence of a common legal theory does not establish
    typicality when proof of a violation requires individualized inquiry. See Parke v. First
    Reliance Stnd. Life Ins. Co., 
    368 F.3d 999
    , 1004-05 (8th Cir. 2004). A substantive
    due process claim invariably “demands an exact analysis of circumstances before any
    abuse of power is condemned.” County of Sacremento v. Lewis, 
    523 U.S. 83
    3, 850
    (1998). Given these individualized issues, why is Caroline C.’s assault claim typical
    of other class members’ claims?
    • The alleged assault of Caroline C. occurred at LRC. No named plaintiff who
    is currently a resident alleged a failure to protect claim arising at NRC or HRC. There
    can be no failure-to-protect liability at NRC or HRC unless a non-defendant employee
    at that facility violated patient safety rights. Thus, present and future patients at NRC
    and HRC may not be members of this failure-to-protect class.
    • The proof needed to establish an essential predicate to the substantive due
    process claim against the supervisory defendants -- unconstitutional conduct by a non-
    defendant employee -- will differ greatly if the claim is failure to protect from
    intentional staff member assault as opposed to assault by a fellow resident, which
    requires proof of deliberate indifference to that risk by on-site staff. The former are
    not typical of the latter. See Jones v. Takaki, 
    38 F.3d 321
    , 323-24 (7th Cir. 1994).4
    4
    We do not mean to suggest that institutional failure-to-protect claims are never
    suitable for resolution by class action. Depending on the circumstances, a more
    focused claim on behalf of a more uniform class may well be appropriate for class
    certification. See Jensen v. Clarke, 
    94 F.3d 1191
    (8th Cir. 1996) (random assignment
    of violent inmates to overcrowded prison cells).
    -9-
    The Inadequate Treatment Claims. In addition to the failure-to-protect claims,
    the complaint alleges that defendants have violated class members’ constitutional and
    statutory rights by failing “to provide appropriate essential services necessary for the
    treatment, habilitation, rehabilitation, and amelioration of the Plaintiffs’ mental
    illnesses and/or developmental disabilities.” The complaint and class action motion
    papers did not identify one or more policies or practices common to all three facilities
    that caused these alleged violations. Instead, plaintiffs pleaded a laundry list of
    desired policy changes, alleged that their injuries are caused by the absence of these
    policies, and asserted that Rule 23's requirements are satisfied because all class
    members live in facilities where the desired policies are absent.
    Although the complaint alleged in detail the kinds of treatment plaintiffs
    demand, it only vaguely described the treatment that named plaintiffs Caroline C. and
    Susan Z. required but were denied, alleging that each woman was denied “adequate”
    or “appropriate” “mental health trauma treatment.” This dearth of detail, combined
    with a claim that puts in issue every facet of mental health treatment, makes it
    impossible to evaluate (i) whether the treatment needs and injuries of Caroline C. or
    Susan Z. are typical of other class members; (ii) what specific policies or practices
    violate plaintiffs’ constitutional or statutory rights, causing redressable injuries, and
    why; and (iii) the extent to which the treatment claims are common to all three
    facilities. As the Supreme Court said in reversing an improvidently broad class-wide
    injunction against the Arizona Department of Corrections:
    It is the role of courts to provide relief to claimants, in individual or class
    actions, who have suffered, or will imminently suffer, actual harm; it is
    not the role of courts, but that of the political branches, to shape the
    institutions of government in such fashion as to comply with the laws
    and the Constitution.
    Lewis v. Casey, 
    518 U.S. 343
    , 349 (1996). The district court abused its discretion in
    not conducting a rigorous analysis of these issues.
    -10-
    Moreover, combining the failure-to-protect claims and the right-to-custodial-
    treatment claims in a single class action raises additional Rule 23 issues because the
    Supreme Court has recognized a substantive due process right to reasonably safe
    custodial conditions, but not a broader due process right to appropriate or effective or
    reasonable treatment of the illness or disability that triggered the patient’s involuntary
    confinement. See Youngberg v. Romeo, 
    457 U.S. 307
    , 316-19 (1982); Ass’n for
    Retarded Citizens of N.D. v. Sinner, 
    942 F.2d 1235
    , 1239-40 (8th Cir. 1991). Given
    these differing legal standards, the individualized nature of all substantive due process
    inquiries, and plaintiffs’ failure to identify the specific policies under attack and the
    nature of their federal statutory claims, the massive class action certified neither
    promotes the efficiency and economy underlying class actions nor pays sufficient heed
    to the federalism and separation of powers principles emphasized in Rizzo v. Goode,
    Lewis v. Casey, and other cases.
    The district court’s Memorandum and Order dated May 11, 2005, is vacated,
    and the case is remanded for further proceedings not inconsistent with this opinion.
    ______________________________
    -11-
    

Document Info

Docket Number: 05-2750

Filed Date: 8/15/2006

Precedential Status: Precedential

Modified Date: 10/13/2015

Authorities (19)

Board of the County Commissioners of Bryan County v. Brown , 117 S. Ct. 1382 ( 1997 )

Ortiz v. Fibreboard Corp. , 119 S. Ct. 2295 ( 1999 )

angela-r-and-carrie-g-by-their-next-friend-merry-alice-hesselbein-david , 999 F.2d 320 ( 1993 )

association-for-retarded-citizens-of-north-dakota-lindley-black-by-his , 942 F.2d 1235 ( 1991 )

marcy-jones-and-votis-wilborn-on-their-own-behalf-and-on-behalf-of-all , 38 F.3d 321 ( 1994 )

County of Sacramento v. Lewis , 118 S. Ct. 1708 ( 1998 )

in-re-milk-products-antitrust-litigation-rainy-lake-one-stop-inc-on , 195 F.3d 430 ( 1999 )

melissa-dawn-beck-v-roy-c-wilson-felix-vincenz-enrique-dos-santos-kenneth , 377 F.3d 884 ( 2004 )

elizabeth-rivera-arkansas-carpenters-health-and-welfare-fund-on-behalf-of , 283 F.3d 315 ( 2002 )

James v. City of Dallas , 254 F.3d 551 ( 2001 )

United States Parole Commission v. Geraghty , 100 S. Ct. 1202 ( 1980 )

Rizzo v. Goode , 96 S. Ct. 598 ( 1976 )

East Texas Motor Freight System, Inc. v. Rodriguez , 97 S. Ct. 1891 ( 1977 )

Steel Co. v. Citizens for a Better Environment , 118 S. Ct. 1003 ( 1998 )

ronnie-randolph-v-bill-rodgers-don-roper-paul-delo-michael-bowersox , 170 F.3d 850 ( 1999 )

frederick-lee-revels-v-felix-vincenz-superintendent-dorn-schuffman , 382 F.3d 870 ( 2004 )

jerry-jensen-on-behalf-of-himself-and-all-others-similarly-situated , 94 F.3d 1191 ( 1996 )

ronald-m-murphy-plaintiff-appelleecross-appellant-v-state-of-arkansas , 127 F.3d 750 ( 1997 )

Coopers & Lybrand v. Livesay , 98 S. Ct. 2454 ( 1978 )

View All Authorities »