Class of Guards Can't Sue California Prison System

     SAN FRANCISCO (CN) - Female corrections officers who say California prisoners have harassed them for years, and the state has done nothing to stop it, cannot sue as a class, a federal judge ruled.
     Martha Berndt, Marta Hastings, Sophia Curry, Shelly Adcock, Patricia Moreira, Karen Curry, Lisa Boyd, Kimberley Morin, Raisa Jeffries and the estate of Judy Longo hoped to represent a class of current and former female employees of the California Department of Corrections and Rehabilitation (CDCR). They claim to have been sexually harassed by inmates at various CDCR institutions since as early as 1989.
     The harassment involves "inmate exhibitionist behavior, including inmate indecent exposure, masturbation, and ejaculation," according to the fifth amended complaint. Since 1997, there have allegedly been more than 2,000 of these incidents. "At least 500 reports of [inmate exhibitionist behavior] have been documented at Pelican Bay State Prison alone" as of November 1989, according to the complaint.
     U.S. District Judge Phyllis Hamilton described each plaintiff's allegations in a 24-page ruling Tuesday.
     Longo, now deceased, was forced to retire rather than be terminated because she refused to give medication to an inmate who had a history of masturbating in front of both Longo and Berndt.
     Hastings said that Pelican Bay officials repeatedly ignored her complaints about an exhibitionist inmate, and in fact made matters worse. CDCR managing agent Joseph McGrath and then-Pelican Bay chief deputy warden Teresa Schwartz transferred two more exhibitionist inmates to her unit after she complained, according to the suit.
     One inmate in a Sacramento unit allegedly attacked Curry, "placed her in a headlock, and began cutting the back of her neck with the end of a metal can lid" after she reported him as "a threat to all female staff."
     The inmate "subsequently grabbed Curry and threw her down the stairs." After a co-worker finally stopped the attack by shooting the inmate with a rubber bullet, the prison searched the inmate's cell and "uncovered drawings of plaintiff Curry in sexually explicit and violent poses," according to Hamilton's summary of the suit.
     Morin, who runs a treatment group for inmates in the Sacramento facility, alleges that inmates "constantly expose their genitals, and masturbate and ejaculate during such groups," even though the inmates are supposed to wear special exposure-control jumpsuits. Officials have repeatedly spurned Morin's requests to keep repeated offenders from her group, according to the complaint.
     Boyd says she has had difficulty continuing work as a recreational therapist since September 2010 when a co-worker was "assaulted with urine, feces, and blood by an inmate" whom the therapist had recently written up for exhibitionist behavior. Nevertheless, prison officials have allegedly let that inmate return to that therapist's group.
     "Collectively, plaintiffs allege that their experiences arise out of the same policy of discrimination that exists at all CDCR institutions, which condones and accepts" inmates' indecent behavior, Hamilton wrote. "CDCR allegedly continues to refuse to take prompt or effective remedial action in order to address this ongoing harassment."
     Ultimately, however, the plaintiffs differing claims do not meet the standard for certification, the ruling states.
     Though the complaint says that the Federal Rule of Civil Procedure support certification, Hamilton noted that the "plaintiffs' moving papers, by contrast, newly assert that certification of two distinct 'classes' - each with its own 'subclass' - is appropriate" under the rules.
     "The court has struggled for several months to resolve this class certification motion that is so untethered to the operative complaint," she wrote. "The lack of fidelity to the complaint, and the corresponding lack of precision in plaintiffs' motion papers, makes any Rule 23 analysis almost impossible."
     The timeline also works against class certification.
     "Plaintiffs seek certification of claims that ago back as far as 1989 - more than 20 years ago, and nearly 15 years before the filing of the original complaint in this action," Hamilton wrote. "This vast claim period raises the obvious question whether certain of the putative class members' claims are time-barred."
     There are also administrative bars to the complaint. A party alleging workplace discrimination under Title VII must file a claim with the Equal Employment Opportunity Commission within 300 days of the alleged unlawful practice.
     "There is no evidence that any one of them has filed an EEOC charge on her own behalf, or on behalf of the class," Hamilton wrote, referring to Moreira, Morin and Jeffries.
     The failure to show that the class representatives have "exhausted administrative remedies as required by Title VII is fatal to plaintiffs' request for certification."
     There are also "procedural and substantive deficiencies that ultimately prove fatal" to the request to certify a damages class.
     "Applying the relevant limitations period to these allegations under Title VII, plaintiffs' claims may not date back farther than May 15, 2002 - the earliest date that the statute of limitations began to run [for Berndt and Hastings]," Hamilton wrote.
     The only commonality among plaintiffs and class members is that they each witnessed an inmate exhibitionist behavior incident, according to the ruling.
     Though an inability to calculate damages would not independently defeat class certification, Hamilton noted that it may prove impossible in a situation where "the emotional distress damages to every class member will depend on the individual incidents, and on the kind and extent of inmate exhibitionist behavior they were exposed to, as well as the promptness and efficacy, or lack of efficacy, of defendants' response to any complaint they may have made."
     She added that the potential for multiple mini-trials "further weakens the case."
     Given the problems already stated, it is impossible to make a concrete finding as to numerosity, and "the court is also hard pressed to conclude that plaintiffs have or can demonstrate that the 'commonality' element of Rule 23(a) has been satisfied," the 24-page decision states.
     Without an appeal pursuant to Rule 23(f) of the Federal Rule of Civil Procedure, the trial will proceed as an action brought by the named plaintiffs only, Hamilton ruled.