2:08-cv-02232-HAB-DGB # 98 Page 1 of 11
`E-FILED
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` Monday, 16 November, 2009 01:58:57 PM
` Clerk, U.S. District Court, ILCD
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`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF ILLINOIS
`URBANA DIVISION
`______________________________________________________________________________
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`Case No. 08-CV-2232
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`JEFFREY ORR, et al.,
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`Plaintiffs,
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`v.
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`WILLARD O. ELYEA, MICHAEL
`PUISIS, and WEXFORD CORP.,
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`Defendants.
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`OPINION
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`On April 5, 2009, Plaintiffs filed an Amended Motion to Certify Class (#47). Defendant
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`Wexford Corporation filed its Response (#61) on May 1, 2009. Defendants Willard O. Elyea and
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`Michael Puisis filed their Response (#76) on June 22, 2009. For the following reasons, Plaintiffs’
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`Amended Motion to Certify Class (#47) is DENIED.
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`BACKGROUND
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`Plaintiffs’ Motion
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`In its Amended Motion to Certify Class (#47), Plaintiffs note that all of the current Plaintiffs
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`are either residents or former residents of the Illinois Department of Corrections (IDOC) and have
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`each been diagnosed with Hepatitis C and have elevated liver enzymes. Plaintiffs identify the class
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`as IDOC inmates who at some point during their incarceration had Hepatitis C and elevated liver
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`enzymes but received no Hepatitis C treatment. However, Plaintiffs then go on to break down the
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`class into four subgroups: (1) former residents who have been released but did not receive treatment
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`while incarcerated; (2) those residents with a genotype susceptible to treatment within 12 weeks and
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`who have more than 12 weeks to stay; (3) those residents with genotypes requiring 48 week
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`treatment with more than 48 weeks remaining on their sentence but who are not receiving treatment;
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`and finally (4) those with a genotype indicating a 48 week treatment who have less than 48 weeks
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`remaining on their period of incarceration. Plaintiffs also claim there could possibly be another
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`subgroup of persons of either genotype who have been diagnosed within 12 weeks of their release
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`date.
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`Plaintiffs then discuss the statutory requirements for class certification. Plaintiffs claim “[t]he
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`class is numerous in that it represents something in excess of 2000 individuals and because of the
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`identity issues notified above, it is not practical for the Plaintiffs or counsel to contact each of those
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`individuals and request that they join in individual suit.” Plaintiffs claim that there are identical
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`issues of fact and law as to each of the Plaintiffs: a resident of the IDOC with Hepatitis C. The
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`issues will be identical among the individuals in the various “sub-classes” and among the class as
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`an entire “entity.”
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`Plaintiffs contend that the ability to maintain the class is strong because the position of the
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`Defendants is the same to each and every Plaintiff, thus making a final ruling applicable to all.
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`Notice is met because the majority of the Plaintiffs are in Defendants’ custody and many of those
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`out of custody are still under mandatory supervised release. Kent Heller will act as Plaintiffs’ class
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`counsel.
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`Defendants’ Response
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`Defendants argue that Plaintiffs have not established the prerequisites for maintaining a class
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`under Rule 23:
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`(1) Commonality- Defendants believe Plaintiffs have framed the issue too broadly, as not
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`all of the inmates will have less than one year remaining on their sentence and not all the inmates
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`will be candidates for Hepatitis C treatment.
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`(2) Typicality- Every Plaintiffs’ individual circumstances are going to be different in terms
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`of their particular genotype, length of sentence, whether they are candidates for treatment in the first
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`place, whether they were offered treatment, whether they refused treatment, and whether there is a
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`gap in incarceration.
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`(3) Adequacy- No specific class representatives have been named. No affidavits or other
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`evidence has been provided to demonstrate that any of the named Plaintiffs fit into the class or
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`subclasses set forth in the motion. It is unknown which of the Plaintiffs were affected by the policy,
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`what their treatment regimen was, and the nature of their alleged Hepatitis C. Plaintiffs counter,
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`however, that the IDOC medical department will not release the records to them out of privacy
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`concerns. Defendants also point out that, of the 165 Plaintiffs, 56 are no longer incarcerated, making
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`it difficult to conceive how they could adequately represent the Rule 23(b)(2) class seeking
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`injunctive relief as their release from incarceration renders such claims moot.
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`(4) Questions of Law and Fact - Defendants argue that the question of deliberate indifference
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`under the Eighth Amendment is a case-by-case fact specific problem. Defendants would also have
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`the court take notice of Judge Harold A. Baker’s decision in Roe v. Sims, 06-CV-3034, where he
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`denied class status for many of the same reasons advanced by Defendants.
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`Judge Baker’s Ruling in Roe v. Sims, 06-CV-3034
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`In Roe v. Sims, 06-CV-3034, four plaintiffs with Hepatitis C sued Defendant Elyea in this
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`court over the same IDOC treatment policy at issue in this case. Plaintiffs in that case filed a motion
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`to certify, saying, again, “[t]he Class can easily be described as those inmates within the Department
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`of Corrections who at some point in time during their incarceration had Hepatitis C and elevated
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`liver enzyme levels but received no treatment for that Hepatitis.”
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`Judge Baker denied the motion for class certification, writing:
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`“However, as the Guidelines demonstrate, determining the appropriate
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`treatment for an inmate with Hepatitis C is not easily described or determined. It
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`seems to the court on the current record that inmates’ experience with Hepatitis vary
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`widely. Elevated liver enzymes are only one factor in the determination of whether
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`a liver biopsy should be performed, and many different factors affect whether drug
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`therapy should be initiated. History and physicals, as well as other clinical and lab
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`tests are important, along with determining the existence of contraindications. Here,
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`the Court cannot even tell if Plaintiffs were viable candidates for drug therapy
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`treatment, be it 12, 24 or 48 week[s].
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`In sum, the record does not support Plaintiffs’ assertion that ‘the position of
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`the Defendant is identical to each and every Plaintiff...” . . ., or that the questions of
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`law and fact share enough commonality and typicality for class certification, at least
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`on the present record. Nor have Plaintiffs demonstrated that they adequately
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`represent the class of inmates aggrieved by Dr. Elyea’s policy. Plaintiffs do not even
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`offer their own expert testimony about what their condition is or what care they
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`received in prison. Accordingly, the Court is not persuaded that class certification
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`is appropriate.”
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`ANALYSIS
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`The Seventh Circuit has recently confirmed that district courts should exercise “caution in
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`class certification generally.” Thorogood v. Sears, Roebuck & Co., 547 F.3d 742, 746 (7th Cir.
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`2008). A plaintiff seeking class certification has the burden of proving that the proposed class
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`meets the requirements of Rule 23. Herkert v. MRC Receiveables Corp, 254 F.R.D. 344, 347(N.D.
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`Ill. 2008), citing Williams v. Chartwell Fin. Servs., Ltd., 204 F.3d 748, 760 (7th Cir. 2000). Failure
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`to meet any of the requirements of Rule 23(a) precludes class certification. Herkert, 254 F.R.D. at
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`347, citing Oshana v. Coca-Cola Co., 472 F.3d 506, 513 (7th Cir. 2006). Further, the potential class
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`must also satisfy at least one provision of Rule 23(b). Arreola v. Godinez, 546 F.3d 788,797 (7th Cir.
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`2008). Plaintiffs seeking monetary damages, as Plaintiffs are here, must satisfy the requirements
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`of Rule 23(b)(3). Herkert, 254 F.R.D. at 347. Rule 23(b)(3) requires the court to find that
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`“questions of law or fact common to class members predominate over any questions affecting only
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`individual members, and that a class action is superior to other available methods for fairly and
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`efficiently adjudicating the controversy.” Fed R. Civ. P. 23(b)(3). The court has broad discretion
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`to determine whether the proposed class meets the requirements of Rule 23. Cima v. Wellpoint
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`Health Network, Inc., 250 F.R.D. 374, 377 (S.D. Ill. 2008).
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`Furthermore, for purposes of deciding the certification question, the court does not presume
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`that all well-pleaded allegations are true. Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 675-77
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`(7th Cir. 2001). Instead, the court “look[s] beneath the surface of a complaint to conduct the
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`inquiries identified in [Rule 23] and exercise the discretion it confers.” Szabo, 249 F.3d at 677;
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`Matthews v. United Retail, Inc., 248 F.R.D. 210, 214 (N.D. Ill. 2008). “[S]imilarity of claims and
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`situations must be demonstrated rather than assumed.” Szabo, 249 F.3d at 677; see also Payton v.
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`County of Carroll, 473 F.3d 845, 854 (7th Cir. 2007). In evaluating class certification, the court must
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`take into consideration the substantive elements of the plaintiff’s cause of action and inquire into
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`the proof necessary for the various elements and envision the form that trial on the issues would
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`take. See Cima, 250 F.R.D. at 377. This court, however, will not address any issue pertaining to
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`the merits that does not affect class certification. Szabo, 249 F.3d at 677; Matthews, 248 F.R.D. at
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`214.
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`Federal Rule of Civil Procedure 23(a) states:
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`“Prerequisites. One or more members of a class may sue or be sued as
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`representative parties on behalf of all members only if:
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`(1) the class is so numerous that joinder of all members is impracticable;
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`(2) there are questions of law or fact common to the class;
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`(3) the claims or defenses of the representative parties are typical of the
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`claims or defenses of the class; and
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`(4) the representative parties will fairly and adequately protect the interests
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`of the class.”
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`Fed. R. Civ. P. 23(a).
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`Under Federal Rule of Civil Procedure 23(b)(3), a class action may be
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`maintained if Rule 23(a) is satisfied and if:
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`“[T]he court finds that the questions of law or fact common to class members
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`predominate over any questions affecting only individual members, and that a class
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`action is superior to other available methods for fairly and efficiently adjudicating
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`the controversy.” Fed. R. Civ. P. 23(b)(3).
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`A case presenting issues similar to those before this court, Wrightsell v. Sheriff of Cook
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`County, 2009 WL 482370 (N.D. Ill. 2009), was recently decided by United States District Judge
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`John Darrah. In Wrightsell, the plaintiff, who was in the Cook County Jail from March 5, 2007 to
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`September 19, 2007, alleged that he submitted repeated written requests to see a dentist because of
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`severe tooth pain, yet suffered permanent mouth damage because he was denied dental care due to
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`a jail policy of providing dental care only in cases of extreme emergency. Wrightsell, 2009 WL
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`482370, at *1. The plaintiff also alleged that the jail in 2007 fired many of the dentists employed
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`in the jail, leaving just one dentist for thousands of inmates. The jail’s conduct, according to the
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`plaintiff, constituted a policy of deliberate indifference to the dental needs of prisoners, causing
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`injury to him and others similarly situated. Wrightsell, 2009 WL 482370, at *1.
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` Plaintiff sought to maintain a class action on behalf of all inmates at the jail confined on and
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`after September 23, 2006, who made a request for treatment of dental pain and were not examined
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`by a dentist within seven days of that request. The plaintiff contended that all the Rule 23
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`requirements were satisfied, because: (1) numerosity existed as over 200 grievances have been filed
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`by prisoners alleging inadequate dental care; (2) commonality existed because the common
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`overriding issue was whether the jail’s decision to leave just one dentist in 2007 deprived them of
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`their Fourteenth Amendment rights; (3) typicality exists because the representative’s claims are
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`typical of the class because the claims of each plaintiff allege they received constitutionally
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`inadequate treatment flowing from the same systemic deficiencies in the jail’s dental program and
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`they all allege dental pain, a request to see a dentist, and no dental treatment or a long delay before
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`treatment; and (4) representation is adequate because the named plaintiff, Wrightsell, had no conflict
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`with other class members and was represented by counsel. The plaintiff also contended that
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`certification was appropriate under Rule 23(b)(3) because common questions predominated over
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`individual issues and a class determination was the superior method of adjudicating the controversy.
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`Wrightsell, 2009 WL 482370, at *2.
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`The court rejected the plaintiff’s attempt at class certification. The court found that
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`individual, not common, issues would dominate the case. Wrightsell, 2009 WL 482370, at *3. The
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`court found deficiencies with commonality, typicality, and the predominance requirements.
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`Specifically, the court relied on a very similar earlier case, Smith v. Sheriff of Cook County, et al.,
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`Case No. 07-CV-3659. The Wrightsell court adopted the same analysis and findings as the court
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`in Smith, that the common issue presented would not be fact intensive, but rather that the issues of
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`individual causation and damages would likely encompass the vast majority of the time and
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`resources necessary to judge the plaintiffs’ claims and that therefore certification of the narrow issue
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`of the reduction of the jail’s dental staff would not satisfy the predominance requirement of Rule
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`23(b)(3). Wrightsell, 2009 WL 482370, at *3. Further, the Wrightsell court noted the Smith court’s
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`conclusion that each prisoner must show: (1) that he had a condition that required dental care; (2)
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`he did not receive adequate dental care; (3) that he suffered significant injury or harm; and (4) that
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`the injury or harm was causally related to the inadequate care. Wrighstell, 2009 WL 482370, at *2.
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`The Smith court found that each plaintiff’s case would necessarily be different and no cause would
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`be typical, making the case inappropriate for certification under Rule 23(a). Wrightsell, 2009 WL
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`482370, at *2. After adopting much of the reasoning in Smith, the court denied the request for class
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`certification.
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`Here, the court finds no reason to depart from the conclusions reached by Judge Baker in the
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`earlier case. Failure to meet any of the requirements of Rule 23(a) precludes class certification.
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`Herkert, 254 F.R.D. at 347, citing Oshana, 472 F.3d at 513.
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`(1) Numerosity
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`The first requirement, numerosity, is met. There are over 100 named Plaintiffs in the suit,
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`and the proposed class, according to Plaintiffs, exceeds 2,000 former or current IDOC inmates.
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`(2) Commonality
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`The court agrees with Defendants that Plaintiffs have framed the issue too broadly. Here,
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`all of the Plaintiffs have challenged the policy regarding treatment of Hepatitis C in the IDOC, but
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`as was written in Judge Baker’s opinion, the policy does not affect all inmates with Hepatitis C
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`because not all of the Plaintiffs will have less than one year remaining in their sentence, while others
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`are not candidates for Hepatitis C treatment. Different genotypes mean different treatment
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`schedules. There is a possibility that individual, and not common issues, will dominate the case, as
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`to the individual injuries suffered by each Plaintiff due to their particular Hepatitis C-related
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`complications, treatment/lack of treatment, prognosis, and incarceration period. See Wrightsell,
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`2009 WL 482370, at *3.
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`(3) Typicality
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`As far as typicality the class representative must show that its claims are typical of the claims
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`of the putative class members. See Fed. R. Civ. P. 23(a). “A plaintiff’s claim is typical if it arises
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`from the same event or practice or course of conduct that gives rise to the claims of other class
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`members and his or her claims are based on the same legal theory.” Quiroz v. Revenue Prod.
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`Mgmt., Inc., 252 F.R.D. 438, 442 (N.D. Ill. 2008), quoting Retired Chicago Police Ass’n v. City of
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`Chicago, 7 F.3d 584, 597 (7th Cir. 1993). While factual distinctions between the claims of the named
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`and represented plaintiffs do not defeat typicality, the claims of the named plaintiffs must have “the
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`same essential characteristics” as the claims of the proposed class. Srail v. Vill. of Lisle, 249 F.R.D.
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`544, 550 (N.D. Ill. 2008); see also Oshana, 472 F.3d at 514
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`While all the Plaintiffs’ claims are ostensibly based on deliberate indifference to serious
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`medical needs, none of the claims are typical. As pointed out by Defendants’ in their brief, every
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`Plaintiff’s individual circumstances are going to be different in terms of their particular genotype,
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`length of sentence, whether they are candidates for treatment in the first place, whether they were
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`offered treatment, whether they refused treatment, and whether there was a gap in incarceration.
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`The claims are not typical. By Plaintiffs own admission, the class would need to be divided into
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`various subgroups to address various Hepatitis C genotypes, which require different types of
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`treatment and different treatment periods. There is a strong likelihood that each Plaintiff’s case
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`would necessarily be different and no claim would be typical, making the case inappropriate for
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`certification under Rule 23(a). See Wrightsell, 2009 WL 482370, at *2.
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`(4) Adequacy
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`Defendants also argue that, for essentially the same reasons, Plaintiff has not met its burden
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`to show that it “will fairly and adequately protect the interests of the class.” See Fed R. Civ. P.
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`23(a)(4). Further, no specific class representatives have been named. No affidavits or other
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`evidence has been provided by Plaintiffs demonstrating which Plaintiffs fit into the class or various
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`subclasses. It is unknown which Plaintiffs were affected by the policy, what their treatment was,
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`and the nature of their Hepatitis C. Also, a large number of the Plaintiffs are no longer incarcerated,
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`having an impact on whether or not they can adequately represent the class. As in the earlier case,
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`there has been no showing by Plaintiffs that “they adequately represent the class of inmates
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`aggrieved by Dr. Elyea’s policy. Plaintiffs do not even offer their own expert testimony about what
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`their condition is or what care they received in prison.”
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`As Plaintiffs have failed to meet all of the requirements for Rule 23(a), there is no need to
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`address the issues under Rule 23(b). See Oshana, 472 F.3d at 513. For the reasons stated above,
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`Plaintiffs’ Amended Motion for to Certify Class (#47) is DENIED.
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`IT IS THEREFORE ORDERED:
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` Plaintiffs’ Amended Motion for Class Certification (#47) is DENIED.
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`ENTERED this 16th day of November, 2009
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`s/ Michael P. McCuskey
`MICHAEL P. McCUSKEY
`CHIEF U.S. DISTRICT JUDGE
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