ERIC F. MELGREN, District Judge.
Plaintiffs Tyrell Jackson ("Plaintiff Jackson") and Randall Chapman ("Plaintiff Chapman"), individually and on behalf of others similarly situated, and Plaintiff Mabel Estes ("Plaintiff Estes"), on behalf of herself and on behalf of a class of persons similarly situated, assert claims against Defendant Donald Ash ("Defendant"), in his official capacity as Sheriff of Wyandotte County, Kansas, alleging violations of the First and Fourteenth Amendments to the United States Constitution. This matter comes before the Court on Plaintiffs' Motion for Class Certification (Doc. 3), filed September 30, 2013, pursuant to FED. R. CIV. P. 23. For the reasons set forth below, the Court grants the motion.
At all times relevant to this action, Defendant has been the Sheriff of Wyandotte County, Kansas. As such, Defendant is charged not only with the care and custody of the inmates of the Wyandotte County Adult Detention Center (the "Jail"), but also with creating and enforcing all policies and practices of the Jail. Located in Kansas City, Kansas, the Jail houses convicted prisoners, pretrial detainees, and civilly committed individuals. Its capacity, at any given time, is approximately 327 inmates. Plaintiffs Jackson and Chapman are current inmates of the Jail. Plaintiff Estes is a private citizen and the girlfriend of Plaintiff Chapman.
Effective on or about June 9, 2009, Defendant instituted a policy requiring all outgoing and incoming mail, with the exception of legal or privileged mail,
Under the Policy, Jail officials provide inmates with two postcards per week, as part of the inmates' weekly indigent supply packet. Inmates may purchase extra postcards from the Jail's commissary. The Policy allows for substantive content on only one side of the postcard; the front is reserved solely for the addressee's name and address, the sender's name and return address, and postage.
Plaintiffs Jackson, Chapman, and Estes now allege that the Policy not only limits the amount of correspondence inmates may generate and receive, but it also curtails the type of information contained within that correspondence. For example, Plaintiffs claim that the Policy restricts their ability to write about family and romantic relationships, health and medical treatment, finances, and legal matters, given that, when written on postcards, the information may be easily read by a whole host of people, both inside and outside the Jail. While Plaintiffs admit that they have other options for communication, including in-person visits and telephone calls, they argue that mail correspondence is the most economical and efficient means through which inmates and their chosen correspondents can stay in touch.
While Defendant admits that he is responsible for all Jail policies and practices, including the Postcard-Only Mail Policy, he denies that the Policy infringes upon Plaintiffs' First or Fourteenth Amendment rights.
Whether to certify a class is a matter committed to the broad discretion of the trial court.
As the parties seeking class certification, Plaintiffs have the burden of demonstrating, under a strict burden of proof, that the requirements of Rule 23 are clearly satisfied.
Prior to determining whether a plaintiff has met the prerequisites of Rule 23(a), the Court must first address the proposed class definition.
Defendant sets forth no objection to Plaintiffs' proposed class definition. Therefore, the Court presumes that Defendant concedes this preliminary issue and finds that Plaintiffs' proposed class definitions are sufficient.
To establish that the proposed class is so numerous so as to make joinder impracticable, Plaintiffs must produce some evidence, or otherwise establish by reasonable estimate, the number of class members who may be involved.
Here, Plaintiffs establish that the Jail holds, at any given time, approximately 327 inmates. While Plaintiffs acknowledge that the Jail's average daily population is in constant flux, they assert that "there can be little doubt that at least 50" of those inmates desire to write letters.
Acknowledging the lack of a set formula for determining whether a plaintiff has satisfied the numerosity requirement, Defendant argues that Plaintiffs' proffered number of fifty affected inmates is nevertheless merely arbitrary and not based on any affirmative evidence. To this point, Defendant notes that the Policy has been in effect for more than four years and Plaintiffs can only affirmatively identify two inmates and one outside correspondent who feel that they have been harmed by the Policy. This, Defendant argues, is true despite Plaintiffs' assertion that "thousands of persons are arrested and booked annually as inmates and made subject" to the Policy.
Despite Defendant's concern, this Court cannot help but agree with Plaintiffs. The number of persons affected by the Policy, at any given time, is, at a minimum, 327, the Jail's inmate capacity. This is true because the Policy applies to all inmates, not to mention their family, friends, and other chosen outside correspondents, regardless of whether these individuals use the Jail's mail system. What Plaintiffs allege is not just a potential constitutional violation against one or any given number of inmates, but rather a policy implemented against all inmates, such that all inmates face its allegedly chilling effects. Whether Plaintiffs can prove this effect is not for this Court to now say. Rather, this Court may only determine whether the number of inmates and outside correspondents who are subject to the Policy is so numerous as to render joinder impracticable. Other courts in this Circuit have held that "numerosity is met where . . . the class includes individuals who will become members in the future. As members in futuro, they are necessarily unidentifiable, and therefore joinder is clearly impracticable."
Rule 23(a)(2) requires Plaintiffs to show that there are questions of law or fact common to the class, or, in other words, that members of the putative class "possess the same interest and suffer the same injury."
In contrast, Defendant argues that this list alone does not satisfy the commonality requirement; rather, it is whether these common questions will generate common answers that prompt class certification. Defendant further alleges that the numerous dissimilarities within the proposed classes prevent Plaintiffs from meeting the commonality requirements as Plaintiffs cannot show: (1) that other proposed class members feel the same way Plaintiffs do about the Policy; and (2) that other proposed class members have the same difficulty with regard to travel and health concerns that Plaintiffs do.
While it is clear that each inmate may be affected differently by the Policy based on his or her communication preferences, it is also clear that a finding of commonality "does not require that class members share every factual and legal predicate. A single common issue of fact or law shared by the class will satisfy the requirement of Rule 23(a)(2)."
Rule 23(a)(3) requires that the representative plaintiffs possess the same interests and suffer the same injuries as the proposed class members.
Here, as Plaintiffs argue, the claims, legal theories, interests, and suffered injury of Plaintiffs and all members of the proposed classes are identical: Plaintiffs and the Proposed Plaintiffs are all currently subject to — or will be subject to — Defendant's Policy. Defendant alleges that Plaintiffs' individual fact situations, namely the inability of Plaintiffs' Jackson and Chapman's family and friends to visit, Plaintiff Chapman's mental health issues, and Plaintiff Estes' inability to regularly travel to the Jail, prevent a finding of typicality. However, the Tenth Circuit has stated that "every member of the class need not be in a situation identical to that of the named plaintiff to meet Rule 23(a)'s . . . typicality requirements.'"
Therefore, the Court finds that Plaintiffs have satisfied the typicality requirement under Rule 23(a)(3).
Pursuant to Rule 23(a)(4), a representative plaintiff must show that he or she will fairly and adequately protect the interests of the class.
Here, there is no evidence that Plaintiffs Jackson, Chapman, or Estes have any potential conflict with other members of the proposed classes. Defendant does not dispute that Plaintiffs' counsel is experienced and able to manage class litigation. In fact, Defendant does not contest this requirement at all. Accordingly, the Court finds that Plaintiffs have satisfied the requirement of Rule 23(a)(4) concerning adequacy of representation.
After satisfying the prerequisites under Rule 23(a), Plaintiffs must demonstrate that the proposed class action fits within one of the three categories described in Rule 23(b). In this case, Plaintiffs seek to proceed under Rule 23(b)(2), which states "[a] class action may be maintained if Rule 23(a) is satisfied and if . . . the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole." The Tenth Circuit has interpreted this to "require that a class must be amenable to uniform group remedies."
Here, it is clear, despite Defendant's objection to the contrary, that Plaintiffs seek only one remedy on behalf of themselves and all Proposed Class Members: an order enjoining Defendant, his officers, agents, affiliates, subsidiaries, servants, employees, and successors from continuing the Postcard-Only Mail Policy. Therefore, the Court finds that Plaintiffs satisfy the requirements of Rule 23(b).
Defendant argues that class certification is unnecessary given that "[i]f the postcard policy is found to be unconstitutional and Plaintiffs are granted the requested relief, the proposed class will receive the same remedy regardless of whether class certification is granted or not."
In a more recent case brought in the District of Colorado, the plaintiffs, much like Plaintiffs in the case at hand, were prisoners in the Boulder County Jail who sought, on behalf of themselves and a putative class of other inmates, to challenge a jail policy under which certain outgoing mail sent by prisoners was required to be written on postcards supplied by the jail.
While class certification is surely not appropriate in every case in which it is sought, courts have generally held that claims involving an ever-changing jail or prison population are prime candidates for certification.
Based on the foregoing, the Court concludes that class certification is necessary and that Plaintiffs' proposed classes satisfy the requirements of Rule 23. Accordingly, the class will be certified with respect to Plaintiffs' constitutional claims. Plaintiffs Jackson and Chapman are appointed as class representatives for the Jail Inmate Class. Plaintiff Estes is appointed as class representative of the Outside Correspondent Class.
"An order certifying a class must also appoint class counsel that will adequately represent the interests of the class."
Plaintiffs are presently represented by both the American Civil Liberties Union ("ACLU") Foundation of Kansas and the Social Justice Law Collective. Defendant does not oppose Plaintiffs' motion for their current attorneys to serve as co-lead class counsel. After reviewing the record, the Court is satisfied that Plaintiffs' attorneys meet the criteria of Rule 23(g) and will adequately represent the interests of the class as counsel. Plaintiffs' counsel has significant experience in handling class actions involving jail and prison inmates. Accordingly, the Court appoints Plaintiffs' current attorneys as co-lead class counsel for this action.
Under Rule 23(c)(2)(A), when a court certifies a class under Rule 23(b)(2), the Court "may direct appropriate notice to the class."
(quoting Jack v. American Linen Supply Co., 498 F.2d 122, 124 (5th Cir. 1974)).
