In the

United States Court of Appeals
                For the Seventh Circuit

No. 09-2728

JEFFERY M ARK O LSON, on behalf of himself
and a class of those similarly situated,

                                                 Plaintiff-Appellant,
                                  v.


T RACY B ROWN, in his official capacity as Sheriff
of Tippecanoe County,
                                         Defendant-Appellee.


              Appeal from the United States District Court
       for the Northern District of Indiana, South Bend Division.
                No. 4:09-CV-00006—Allen Sharp, Judge.



    A RGUED N OVEMBER 10, 2009—D ECIDED F EBRUARY 4, 2010




  Before P OSNER and F LAUM, Circuit Judges, and D ER-
Y EGHIAYAN, District Judge.Œ
  F LAUM, Circuit Judge. A putative class of plaintiffs,
represented by Mark Olson, filed a complaint against


Œ
  Hon. Samuel Der-Yeghiayan, District Judge for the Northern
District of Illinois, is sitting by designation.
2                                               No. 09-2728

the Sheriff of Tippecanoe County, Tracy Brown, alleging
several First Amendment violations and violations of
Indiana law in the Tippecanoe County Jail. Olson filed
for class certification at the same time he filed the com-
plaint. Shortly after Olson filed the complaint and
motion for class certification, the Indiana Department of
Correction transferred him out of Tippecanoe County
Jail. Because the transfer took place before class certifica-
tion, the district court dismissed the suit as moot. Olson
appeals the dismissal on the ground that this case is
inherently transitory for any possible named plaintiff and
therefore falls within the exception to the mootness
doctrine announced in Gerstein v. Pugh, 

(1975).
We find that this case fits within the exception to the
mootness doctrine carved out for inherently transitory
cases and therefore we reverse the district court’s dis-
missal.


                      I. Background
  Tippecanoe County Jail (“TCJ”) is a temporary deten-
tion center that houses inmates awaiting trial, release
on bail, or transfer to the Indiana Department of Correc-
tion, or serving sentences of less that one year. The
parties stipulate that the following statistics regarding
the inmate population as of February 20, 2009 represent a
typical portrait of the inmate population at any given
time: TCJ housed 529 inmates; 128 inmates had been
incarcerated for less than 30 days; 119 inmates had been
incarcerated between 30 and 90 days; 130 inmates had
been incarcerated between 90 and 180 days; 121 inmates
No. 09-2728                                              3

had been incarcerated between 180 and 365 days;
41 inmates had been incarcerated for more than 365 days;
and the average length of stay for the 529 inmates was
139 days. Coincidentally, Olson was incarcerated at TCJ
for exactly 139 days—from August 29, 2008 through
January 15, 2009.
  TCJ employs a grievance policy to address inmate
concerns. Once an inmate files a grievance, the jail is
responsible for responding to the grievance within
seven days. If the inmate does not agree with the
decision, he or she may appeal. The jail then has fifteen
days to respond to the appeal. While incarcerated at
TCJ, Olson filed twenty-one grievances and twenty-one
grievance appeals. The jail never responded to any of
them. Olson maintained a journal recounting the
precise language of each grievance and each grievance
appeal. Olson’s grievances included two grievances
regarding jail staff opening his legal mail outside of his
presence, one regarding a denial of access to the law
library, and one regarding the jail’s failure to respond
to grievances.
   On January 2, 2009, while incarcerated at TCJ, Olson
filed this complaint and a motion for class certification.
Olson’s complaint set forth claims for injunctive relief
against the Sheriff of Tippecanoe County with respect to
four basic conditions of his confinement: (1) an inadequate
grievance procedure, in violation of Indiana law;
(2) inadequate access to the law library, in violation of
Indiana law; (3) inspection of mail from the courts outside
of his presence, in violation of the First and Fourteenth
4                                                No. 09-2728

Amendments of the United States Constitution and
Indiana law; and (4) inspection of mail from attorneys
outside his presence, in violation of the First and Four-
teenth Amendments of the United States Constitution
and Indiana law. With the motion for class certification,
Olson included affidavits of fifty-three inmates detailing
their experiences with jail staff opening their legal mail
outside of their presence, denying them access to the law
library, and failing to respond to their grievances. Thirteen
days after Olson filed this complaint and his motion for
class certification, the Indiana Department of Correction
transferred Olson to a new facility.
   Brown removed this cause of action to federal court on
January 20, 2009. On February 2, 2009, Brown filed his
answer to the complaint. On March 13, 2009, Brown
filed his Motion for Judgment on the Pleadings pursuant
to Rule 12(c) of the Federal Rules of Civil Procedure. The
district court heard oral argument on Olson’s Motion for
Class Certification on March 18, 2009, but reserved its
ruling on the class certification issue pending a ruling
on Brown’s Motion for Judgment on the Pleadings. On
June 23, 2009, 171 days after the initial filing of this cause
of action, the district court granted Brown’s motion
for Judgment on the Pleadings holding that Olson’s
transfer away from TCJ rendered this cause of action moot.
    This appeal follows.


                       II. Discussion
  Whether a case is moot is a question of law which we
review de novo. Franzoni v. Hartmarx Corp., 

,
No. 09-2728                                                 5

771 (7th Cir. 2002). A case is moot when “the issues
presented are no longer ‘live’ or the parties lack a legally
cognizable interest in the outcome.” United States
Parole Commission v. Geraghty, 

, 396 (1980).
   It is without question that this case would be moot
if Olson had brought his claims individually. Olson only
sought injunctive relief and is no longer subject to the
conditions that formed the basis of his complaint. There-
fore, the controversy is resolved in relation to Olson.
However, Olson filed for class certification while he was
a party to a live controversy. This fact would generally
not save a cause of action from becoming moot upon
the termination of the named plaintiff’s claims prior to
the certification of the class. However, timely filing for
class certification can save a cause of action if it
falls within the exception to the mootness doctrine an-
nounced in Gerstein v. Pugh, 

(1975). The
issue before this court is whether Olson’s claim is so
“inherently transitory” that it is uncertain that any
member of the class would maintain a live controversy
long enough for a judge to certify a class. If so, then this
case is not moot for the purpose of class certification.
  In Gerstein, the Court addressed the issue of class certifi-
cation for Florida prisoners seeking a declaratory judg-
ment that they had a constitutional right to a probable
cause hearing for pretrial detention. Before reaching the
substantive issues, the Court addressed whether it had
jurisdiction to hear the claim. Faced with a situation
where it was likely that none of the named plaintiffs had
a live claim at the time of the class certification decision,
6                                               No. 09-2728

the Gerstein Court specifically addressed the problem
of mootness for class claims brought by pre-trial de-
tainees. The Court found that the case was not moot,
reasoning,
    At the time the complaint was filed, the named respon-
    dents were members of a class of persons detained
    without a judicial probable cause determination, but
    the record does not indicate whether any of them
    were still in custody awaiting trial when the District
    Court certified the class. Such a showing ordinarily
    would be required to avoid mootness under Sonsa.
    But this case is a suitable exception to that require-
    ment. The length of pretrial custody cannot be ascer-
    tained at the outset, and it may be ended at any
    time by release on recognizance, dismissal of the
    charges, or a guilty plea, as well as by acquittal or
    conviction after trial. It is by no means certain that
    any given individual, named as plaintiff, would be
    in pretrial custody long enough for a district judge
    to certify the class. Moreover, in this case the
    constant existence of a class of persons suffering the
    deprivation is certain. The attorney representing the
    named respondents is a public defender, and we
    can safely assume that he has other clients with a
    continuing live interest in this 

, n. 11 (internal citations omitted). A number
of subsequent Supreme Court cases have reiterated
and clarified the exception to the mootness doctrine
announced in Gerstein. See, e.g., Swisher v. Brady, 

(1978); County of Riverside v. McLaughlin, 

,
No. 09-2728                                               7

51-52 (1991). In Swisher, the Court affirmed a district
court’s decision to certify a class of juveniles involved
in the juvenile court system despite the fact that the
named plaintiff’s claims were moot at the time of
the decision. The Court in Swisher relied on Gerstein’s
predecessor, Sosna v. Iowa, 

(1975), to find:
    There may be cases in which the controversy involving
    the named plaintiff is such that it becomes moot as
    to them before the district court can reasonably be
    expected to rule on a certification motion. In such
    instances, whether certification can be said to “relate
    back” to the filing of the complaint may depend on
    upon the circumstances of the particular case and
    especially the reality of the claim that otherwise
    the issue would evade review.

, n. 11. In McLaughlin, the Court
relied on the “inherently transitory” exception to find,
“that the class was not certified until after the named
plaintiffs’ claims had become moot does not deprive [the
Court] of jurisdiction,” in a case challenging the denial
of a prompt probable cause hearing for inmates in the
county 

.
  Although we have yet to apply the Gerstein line of cases
to a case involving jail inmates in this circuit, the Second
Circuit directly addressed this issue in Zurak v. Regan, 

(2d Cir. 1977). In Zurak, a class of inmates at
Rikers Island filed suit against the New York State
Board of Parole alleging a violation of their due process
rights regarding their conditional 

.
All of the class members were serving a sentence of ninety-
8                                               No. 09-2728

days or more. 

time the district court certified
the class, all of the named plaintiffs had already been
released from Rikers Island. 

appealed
the district court’s ultimate decision on the merits
by arguing that the case was moot at the time of class
certification and therefore the district court acted without
proper jurisdiction. 

Second Circuit
found that this case was not moot at the time of class
certification because it fit squarely within the exception
carved out by Gerstein. 

reasoned that the
exception for inherently transitory claims applied in
this situation because, “the relatively short periods of
incarceration involved and the possibility of conditional
release [created] a significant possibility that any single
named plaintiff would be released prior to certification,
although this possibility was less substantial than it was
in Gerstein. As in Gerstein, however, the constant
existence of a class of persons suffering the alleged depri-
vation is certain and the court may safely assume that
counsel has other clients with a continuing live interest
in the issues.” 

(citing Gerstein v. Pugh, 

, 110 n. 11 (1975)).
  We agree with the Second Circuit’s determination that
the Gerstein line of cases require a claim to meet two
main elements for the “inherently transitory” exception to
apply: (1) it is uncertain that a claim will remain live
for any individual who could be named as a plaintiff
long enough for a court to certify the class; and (2) there
will be a constant class of persons suffering the deprivation
complained of in the complaint. 

n. 11; 

. Olson’s claim meets
both requirements.
No. 09-2728                                               9

  First, based on the stipulated facts, it is uncertain that
any potential named plaintiff in the class of inmates
would have a live claim long enough for a district court
to certify a class. As Gerstein and Zurak both explicitly
point out, the length of incarceration in a county jail
generally cannot be determined at the outset and is
subject to a number of unpredictable factors, thereby
making it inherently transitory. While the ultimate
length of confinement does affect the applicability of the
“inherently transitory” exception, the essence of the
exception is uncertainty about whether a claim will
remain alive for any given plaintiff long enough for a
district court to certify the class. In Banks v. NCAA, 

, 1086 (7th Cir. 1992) and Trotter v. Klincar, 

(7th Cir. 1984), we specifically addressed the
fact that the crux of the “inherently transitory” exception
is the uncertainty about the length of time a claim
will remain alive. In both cases we found that the “inher-
ently transitory” exception did not apply because in
both cases the named plaintiffs knew, from the outset,
exactly how long their claims would remain alive but
chose to wait to file for class certification until the
claim was nearly moot or already moot. In Banks, the
plaintiff knew from the outset that his claim would
become moot 120 days from the onset of the controversy,
but he purposefully chose to wait 112 days before filing
his 

. We relied on this inten-
tional delay in filing to find that the plaintiff was pre-
cluded from benefitting from the “inherently transitory”
exception to the mootness doctrine. 

been diligent in filing his claim shortly after discovering
10                                              No. 09-2728

that he had failed to be selected for the draft or as a
free agent, and still been unable to obtain class certifica-
tion, he might have been able to make an argument for
the class that he had standing for the purpose of pursing
a ruling on class certification even though his own in-
dividual claim had become moot.”). In Trotter, the
named plaintiff had a live claim for seventy days but
never filed for class certification. The plaintiff still at-
tempted to rely on the “inherently transitory” exception
for class actions when the court ruled that his case was

. Similar to our reasoning in
Banks, we found that the “inherently transitory” exception
was inapplicable in Trotter because the plaintiff knew
that his cause of action would soon become moot but
chose not to file for class certification.
  Brown attempts to read Banks and Trotter to create a
bright-line rule that we cannot apply the “inherently
transitory” exception to a claim that has been alive
beyond a given number of days. Brown argues that the
“inherently transitory” exception should not apply here
because Olson’s delay in filing this suit is the same as the
one-hundred-and-twenty-day delay in Banks and the
seventy-day delay in Trotter. This analogy is misguided
in two respects. First, no such bright-line rule exists.
Unlike the plaintiffs in Banks and Trotter, Olson did not
know when his claim would become moot. The duration
of his claim was at the discretion of the Indiana Depart-
ment of Correction. An individual incarcerated in a
county jail may be released for a number of reasons that
he cannot anticipate. Olson’s transfer by the Indiana
Department of Correction just thirteen days after he filed
No. 09-2728                                             11

for class certification in this suit illustrates one such
unpredictable occurrence that could unexpectedly moot
a claim for a county jail inmate. This uncertainty is pre-
cisely what makes the “inherently transitory” exception
applicable in this case. Second, because Olson was
required to exhaust his administrative remedies before
filing this suit, the period of time between the first
possible day he could file and the day he actually filed
was only fifty-two days—a significantly shorter period
of time than was at issue in Banks or Trotter.
  The case at bar also meets the second requirement for
the inherently transitory exception—there will be a con-
stant class of persons suffering the deprivation. Con-
trary to Brown’s argument, the “inherently transitory”
exception to the mootness doctrine is distinct from the
“capable of repetition yet evading review” exception.
When the claim is inherently transitory, as it was in
Gerstein and as it is in this case, the plaintiff must
show that there will likely be a constant class of persons
suffering the deprivation complained of in the com-
plaint. This is different from when a plaintiff invokes the
“capable of repetition yet evading review” exception,
where the plaintiff must show that the claim is capable
of repetition as to the named plaintiff. A close reading of
United States Parole Commission v. Geraghty, 

,
398-99 (1980), makes this distinction clear. In Geraghty,
the Court first acknowledged that a plaintiff must
have a reasonable expectation of being subjected to the
offending behavior in the future to avail himself of the
“capable of repetition yet evading review” exception to
the mootness doctrine. However, the Court then turned
12                                                No. 09-2728

to Gerstein and found that the “inherently transitory”
exception does not require any indication that the
named plaintiff would be subject to the complained-of
situation in the future but just that the claim is capable
of repetition. 

. Our own prece-
dent also supports this distinction. In Banks, we treated
“inherently transitory” and “capable of repetition yet
evading review” as two separate lines of argument by
the plaintiff for why the case was not 

.
  Because Olson asks this court to apply the “inherently
transitory” exception, not the “capable of repetition yet
evading review” exception, the Supreme Court’s recent
holding in Alvarez v. Smith, 588 U.S. ___, 

(Dec. 8, 2009), is not applicable to this case. In Alvarez,
the Court held that the plaintiffs could not rely on the
“capable of repetition yet evading review” principle to
avoid mootness because they could not show that they
were likely to be subjected to the complained-of state
procedures again. Alvarez, at *5-6. As discussed above,
the “inherently transitory” exception does not require
such a showing. Additionally, the district court in Alvarez
denied the plaintiffs’ motion for class certification. The
plaintiffs never appealed that decision. Significantly, this
case is in a different procedural posture. Here, Olson
seeks to keep the claim alive beyond his individual
claim to certify the class. If the district court certifies the
class, the case can proceed to the merits for the certified
class of plaintiffs. The Alvarez plaintiffs, through their
inaction in response to the denial of class certification,
conceded that their claims should not extend beyond
No. 09-2728                                              13

the life of their individual claims. The difference in pro-
cedural postures of the two cases makes Alvarez inap-
plicable to the case at hand.
  Since we find that the claim “is of the kind that is un-
likely to be able to certified before it becomes moot,” and
thereby meets the first requirement of Gerstein, all
Olson must show is that the claim is likely to recur
with regard to the class, not that the claim is likely to
recur with regard to him. The pervasive nature of these
claims, as evidenced by the fifty-three affidavits outlining
problems similar to those complained of by Olsen,
makes it likely that TCJ’s alleged practices of opening
inmates’ legal mail, denying inmates access to the law
library, and failing to respond to inmates’ grievances will
continue. Therefore, this case meets the second require-
ment of the inherently transitory exception.
  As a final argument, Brown urges us to affirm the
dismissal of the suit on the ground that it fails to state
a claim for which relief may be sought. However, the
district court did not reach this issue before dismissing
the case for lack of jurisdiction. Therefore, we do not
reach the issue of whether the pleadings state a claim
for which relief may be sought.
   Additionally, Olson asks that we address the issue of
class certification. We decline this invitation. A district
court has broad discretion to determine whether certi-
fication of a class action lawsuit is appropriate. Mira v.
Nuclear Measurements Corp., 

, 474 (7th Cir.
1997). Therefore, we remand to the district court to de-
termine whether class certification is appropriate in
this case.
14                                              No. 09-2728

                     III. Conclusion
   For the above stated reasons, we R EVERSE the district
court’s dismissal of the complaint as moot. We R EMAND
for consideration of the plaintiff’s motion for class certi-
fication and defendant’s motion for dismissal for failure
to state a claim.




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