Arizona Inmates Likely to Keep Class Status

     SAN FRANCISCO (CN) – An attorney for Arizona faced a 20-minute barrage of questions in the 9th Circuit about class certification for inmates unhappy with prison conditions.
     Judge Stephen Reinhardt took the lead on the three-member appellate panel in asking attorney Nicholas Acedo to explain how Arizona justifies appealing certification of the inmate class. The judge approached the standards for class certification from every angle he apparently could think up.
     “Suppose there were a threat in a prison of a fire,” he said. “Would you need more than that? Where all the inmates would be burned to death if that fire occurred, could they bring a class action?”
     Acedo answered that they probably could form a class, but tried to avoid talking about such scenarios, arguing instead that the plaintiffs in this case had not met the U.S. Supreme Court’s new, stricter requirement for class certification that the high court outlined in the 2011 decision Wal-Mart v. Dukes.
     In particular, Acedo said that the district court order did not meet the new commonality and typicality standards established in Wal-Mart “because [the order] postulates a legal theory as the glue that holds the class members together.”
     Fourteen of the roughly 33,000 Arizona inmates sued early last year, alleging the state corrections department was deliberately indifferent to the medical, dental and mental health of prisoners. They also challenge confinement in what they call isolation units. Arizona objects to that name. The suit alleges cruel and unusual punishment in violation of the U.S. Constitution’s Eighth Amendment.
     ADC, short for the Arizona Department of Corrections, is named as a defendant, along with its director, Charles Ryan, and the director of ADC’s Division of Health Services, Richard Pratt.
     While U.S. District Judge Neil Wake said that the inmates’ allegation of deliberate indifference was “too broad” to meet the commonality requirement of class certification, he added that “the practices plaintiffs identified in their complaint” narrowed their claims down enough.
     “The claims of systemic deficiencies in ADC’s health care system and unconstitutional conditions of confinement in isolation units apply to all proposed class members,” the order says.
     Arizona’s appeal seemed to fare poorly at the hearing last week as Judge Reinhardt’s hypothetical prison fire took on new forms.
     “Suppose some are closer to the fire than others,” he said. If some parts of the building burn and others don’t, the judge asked, “do the plaintiffs have to be the ones who are closest to the fire?”
     Acedo, from Struck, Wieneke & Love in Chandler, Ariz., responded that any prisoner in the facility could have an individual claim prior to a fire if, for instance, there were no fire extinguishers anywhere in the facility.
     That’s when Reinhardt asked: “And if there’s not adequate health care, not enough doctors in the facility to provide adequate care, wouldn’t all the prisoners in the facility have the risk of harm?”
     “I think that risk of harm is very speculative,” Acedo replied. “Each inmate would have a different circumstance.”
     Reinhardt questioned the assertion: “You don’t know which one is going to suffer – they all suffer if there aren’t enough doctors. You don’t which individual will come at the end of the line and doesn’t get taken care of for 30 days because there aren’t enough doctors.”
     “One of them may get an appendicitis, but you don’t know which one’s going to get an appendicitis,” the judge added. “The ones with medical problems don’t know what medical problems they’re going to have. Their claim is that when they do have a medical problem, there won’t be enough doctors. I completely understand your argument on the merits. I just don’t understand how you’re supposed to test the inadequate conditions other than through a class action of all the prisoners who may be affected by the inadequate conditions.”
     Acedo answered that class certification simply asks “whether there’s a common question that can be answered in one stroke.”
     “And with the type of Eighth Amendment health care claims and conditions of confinement claims in this case, you can’t pose a question where the answer to that question is ‘yes’ or ‘no,'” Acedo added. “Does the level of staffing at ADC right now, does that violate these inmates’ Eighth Amendment rights? That’s a question that the District Court certified and that the plaintiffs rely on, but you can’t say yes or no to that question.”
     Reinhardt countered that the merits of the prisoners’ Eighth Amendment allegations would be determined only through a trial. Doubts about the existence of constitutional violations cannot serve to deny the plaintiffs class status, he added.
     “As far as the commonality of the question, I just don’t understand why it’s not a common question, because any prisoner in the prison suffers the same risk,” Reinhardt said. “Now I can understand you’re saying there is no risk, no constitutional violation. That we get to much later in the case.”
     As Acedo’s 20 minutes ended, Reinhardt said, “I’m sorry I monopolized this discussion, if you could call it a discussion. Inquisition might the better word.”
     David Fathi, who represents the inmate plaintiffs for the American Civil Liberties Union, did not have much work to do following Reinhardt’s efforts.
     Judge Paul Watford asked Fathi how the District Court could rule for class certification when the inmates had not been very specific about what type of injunction they want.
     “We don’t need to specify what the injunction would look like at this point,” Fathi said.
     He said the District Court’s ruling meant his clients’ complaint was specific enough for the class-certification stage, and that the judge below had properly relied on the plaintiffs’ experts to conclude that “these practices pose a substantial risk of serious harm.”

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