Arreola, Gilbert v. Godinez, Salvador ( 2008 )


Menu:
  •                               In the
    United States Court of Appeals
    For the Seventh Circuit
    No. 07-1700
    G ILBERT A RREOLA,
    Plaintiff-Appellant,
    v.
    S ALVADOR G ODINEZ, Director, Cook County Jail,
    T HOMAS D ART, Cook County Sheriff,
    E RNESTO V ELASCO , former Director,
    Cook County Jail, and C OOK C OUNTY, Illinois,
    Defendants-Appellees.
    Appeal from the United States District Court
    for the Northern District of Illinois, Eastern Division.
    No. 03 C 2854—Matthew F. Kennelly, Judge.
    A RGUED JANUARY 25, 2008—D ECIDED O CTOBER 14, 2008
    Before B AUER, W OOD , and E VANS, Circuit Judges.
    W OOD , Circuit Judge. While incarcerated at Hill Correc-
    tional Center (“Hill”) in Galesburg, Illinois, Gilbert Arreola
    broke his ankle during a recreational soccer game. Five
    days later, he was transferred to Cook County Jail (“the
    Jail”) for a temporary stay, so that he could testify in
    2                                                  No. 07-1700
    unrelated judicial proceedings at the Cook County Court-
    house. Dissatisfied with the medical care and conditions
    of confinement at the Jail, Arreola filed a five-count
    complaint under 
    42 U.S.C. § 1983
    . The first two counts
    were the subject of a separate appeal, which we decided
    on July 14, 2008. See Arreola v. Choudry, 
    533 F.3d 601
    (7th Cir. 2008). There, we rejected Arreola’s contention
    that he was entitled to a new trial on his claim that the
    medical treatment he received at Hill from Dr. Mohammed
    Choudry violated his rights under the Eighth Amendment.
    The present appeal comes to us under F ED. R. C IV. P.
    23(f), which permits courts of appeals to accept interlocu-
    tory appeals from decisions granting or denying class
    certification. Arreola wishes to serve as the class represen-
    tative for a class of inmates who have been injured by the
    Jail’s policy of denying crutches in certain areas of the
    Jail to the inmates who live there. Arreola argues that this
    “Crutch Policy” violates the Eighth and Fourteenth
    Amendments because it mandates deliberate indiffer-
    ence to the serious medical needs of inmates and creates
    unconstitutional conditions of confinement. Because he is
    seeking, on behalf of the putative class, both injunctive
    relief and damages, Arreola sought certification under
    F ED. R. C IV. P. 23(b)(2) and (b)(3). After he filed his motion
    for class certification, the district court bifurcated the
    proceedings, severing Arreola’s individual claims against
    Dr. Choudry from his class claims against Cook County
    and the responsible officials at the Jail (“the County
    defendants” or “the County”).
    In an order dated January 30, 2007, the district court
    denied certification for the proposed Rule 23(b)(2) class
    No. 07-1700                                                3
    for injunctive relief and denying without prejudice the
    proposed Rule 23(b)(3) class for damages. Arreola ap-
    pealed under Rule 23(f), and in an order issued March 21,
    2007, we agreed to accept his appeals. We conclude that
    the district court properly denied Arreola’s motion for
    certification of a Rule 23(b)(2) class for injunctive relief,
    but we remand the case for further proceedings on his
    individual claims and his motion for certification under
    Rule 23(b)(3).
    I
    Arreola injured his ankle at Hill on April 22, 2001. The
    medical treatment he received in the immediate after-
    math of his injury was the subject of his claim against
    Dr. Choudry, and so we do not discuss it further. What
    concerns us is the sequence of events that began on
    April 27, five days after Arreola’s injury, when he was
    temporarily transferred to the Jail for purposes of
    testifying in post-convictions proceedings. While at the
    Jail, Arreola was housed in Division Nine. Like almost
    all housing areas in the facility, Division Nine was gov-
    erned by an official Jail policy that prohibits inmates
    housed there from using crutches or canes whenever
    they are in the “living units.” Instead, those medical
    devices—to which inmates can obtain access only if a
    doctor has prescribed their use—are “to be stored in the
    officer’s control room” at all times when the inmate is
    in the living units. When inmates are “off of the living
    units,” they may use their crutches and canes.
    The “living units” include the inmates’ cells, a dayroom,
    bathrooms, and a shower area. The inmates spend almost
    4                                                No. 07-1700
    all of their time in these areas; they must receive authoriza-
    tion to leave if, for example, they wish to visit the law
    library or a courthouse. It is undisputed that under the
    Policy, any inmate who has been prescribed crutches or
    a cane for any reason (sprain, break, amputation, surgery,
    fracture, etc.) cannot use his devices while in the living
    units.
    The Policy is only one page long. The copy in the record
    applies to “Division IX,” but it is undisputed that the same
    “Divisional Policy” applied to all but two of the 11 divi-
    sions in the Jail. The version we have went into effect in
    January 1996 and was revised in November 2000. The text
    is divided into “GENERAL RESPONSIBILITIES” and
    “SPECIFIC RESPONSIBILITIES.” The former provides:
    Handicapped individuals are those who, by reason of
    their infirmities, may be unable to participate in typical
    institutional programs and who may require special
    medical care or physical assistance to function in the
    institutional setting. Because Division Nine is not
    handicapped accessible on the living units (i.e. bath-
    rooms, showers & water fountains)[,] the Department
    has designated Division Eight as the division where
    physically challenged inmates are housed in a
    manner that provides for the inmates safety and
    security. Division Nine is not designed for handi-
    capped inmates use and the Division doesn’t provide
    for integration of the handicapped with the inmates
    in general population.
    (All caps omitted; original punctuation reproduced.) The
    “Specific Responsibilities” section adds the following
    guidelines for implementing the Policy:
    No. 07-1700                                                  5
    1. Division nine only houses inmates who are ambula-
    tory. However, the division Is handicap accessible
    foe staff and visitors.
    2. Crutches/canes are permissible walking aids off of
    the living units.
    3. Crutches/canes are not to be on the living units.
    Crutches/canes are to be stored In the officer’s control
    room.
    4. If an inmate is unable to use the divisions resources
    (cells, bathrooms, showers, Stairs, etc.) The watch
    commander shall be notified and a transfer to divi-
    sion Eight initiated.
    (Original spelling and punctuation reproduced.)
    Thus, the Policy specifies that the only way for inmates
    to obtain access to crutches or canes in the living units is to
    be transferred to Division Eight, the Handicapped Unit.
    There, the facilities are adapted for the handicapped, and
    inmates may keep their crutches and canes with them
    while in the living units. According to the testimony of two
    attending physicians, who are employed by Cermak Health
    Services to provide medical care to the Jail’s prisoners,
    decisions about which inmates are “handicapped” (and
    thus should be transferred to Division Eight) are left to
    the discretion of the corrections officers at the Jail; med-
    ical professionals, the prison doctors stated, have no
    authority to change the inmates’ housing assignments.
    Thus, Arreola is claiming, the Policy does not assure that
    inmates needing crutches are moved to the Division that
    can accommodate them.
    6                                                 No. 07-1700
    The defendants dispute the accuracy of that testimony,
    contending that Cermak Health Services and its
    physicians have the responsibility and authority to deter-
    mine where an inmate or detainee is placed—and that, in
    this case, Cermak sent Arreola to Division Nine, not to
    the infirmary or to Division Eight. (We are not told di-
    rectly, but we presume that the infirmary is the other
    division of the Jail in which the Policy does not apply.) This
    factual dispute ultimately is not material to Arreola’s
    appeal, but we note that the Policy itself does not resolve
    it, for its use of the passive voice in specific responsibility
    4 obscures who determines that an inmate is not ambula-
    tory and who notifies the watch commander to initiate
    a transfer.
    While at the Jail and subject to the Policy, Arreola
    did not have access to his crutches at any time while in
    the living units. He continually asked to be given his
    crutches or to be transferred to another division where
    he could use them, but officers at the Jail denied his
    requests. Their only reason for refusing to let him use his
    crutches in Division Nine was the Policy; the record
    reveals no reason why they refused to send him to
    Division Eight. Arreola thus was forced to try to walk on
    his broken ankle, despite repeated orders from the Jail’s
    physicians that the ankle should not bear any weight. As a
    result, he experienced extreme pain. His inability to use
    the crutches also hindered the proper healing of his
    injury and caused his cast to deteriorate as a result of the
    excess pressure he had to apply to it. When Arreola was
    taken to the Cook County Courthouse to testify in his
    judicial proceedings, he was permitted to use his crutches
    No. 07-1700                                                 7
    only after he left the living units. His complaint alleges
    that, at the conclusion of his hearing as he was being
    escorted back to the Jail, he slipped on a stairwell in the
    courthouse, further aggravating his injury and breaking
    apart his already-deteriorated cast. He believes that this
    fall was caused in part by the fact that he never learned
    properly to use his crutches, because he was denied
    access to them at the Jail.
    Arreola’s stay at the Jail lasted about one month; on May
    21, 2001, he was moved to a facility in Joliet, Illinois; he
    then went back to Hill on May 23. He alleges that during
    his time at the Jail, he tried several times to file grievance
    forms or complaints about the Policy, but those efforts
    were thwarted. Once he was back at Hill, he was able to
    file the relevant grievances, but they were denied. Having
    exhausted his administrative remedies, he turned to the
    federal courts for relief.
    Arreola began these proceedings pro se in April 2003.
    When he filed his complaint, he also asked the court to
    recruit counsel for him. The district court obliged, but after
    two years of minimal progress on Arreola’s claims, the
    court granted counsel’s motion to withdraw. Shortly
    thereafter, on March 29, 2005, the court recruited a new
    attorney, Laura Cullison, to represent Arreola. She has
    done so ably and remains his counsel on appeal.
    Once Cullison got up to speed on the case, she moved for
    leave to file a second amended complaint adding class-
    action allegations to Arreola’s complaint. Over the
    County’s objections, the district court granted her request,
    and in the same order, dated December 13, 2005, the
    8                                                No. 07-1700
    court severed counts I and II (individual claims against
    Dr. Choudry) from counts III, IV, and V (class claims
    against the County and claim for indemnification). Arreola
    filed his second amended complaint the following day,
    December 14.
    The County answered the complaint in April 2006.
    Arreola’s motion for class certification came one month
    later, along with the close of fact discovery. Two weeks
    later, on May 26, the County moved for summary judg-
    ment and requested a stay of class certification pending
    the district court’s resolution of the motion for sum-
    mary judgment. Arreola asked for a stay of the County’s
    motion until the close of expert discovery and for briefing
    to proceed on his motion for class certification. The district
    court granted the County’s request, stayed the class-
    certification motion, and set a briefing schedule on the
    summary-judgment motion. On October 10, Arreola filed
    his response to the County’s motion, as well as a cross-
    motion for partial summary judgment on his claim
    alleging deliberate indifference by the County defendants
    acting in their official capacities. Arreola’s response
    included a rebuttal to the County’s argument that Arreola
    lacked standing to pursue injunctive relief, because he
    was no longer housed at the Jail, and emphasized
    Arreola’s recent disclosure of 10 potential additional class
    members.
    The court issued its order a few months later, on January
    30, 2007. The order did several things: it granted in part
    and denied in part the County’s motion for summary
    judgment; it denied Arreola’s cross-motion for partial
    No. 07-1700                                               9
    summary judgment; and it denied Arreola’s motion for
    class certification, in part without prejudice. The court
    decided that because Arreola was no longer incarcerated
    at the Jail, he lacked standing to pursue injunctive relief.
    With respect to Arreola’s claim for damages, however, the
    court concluded that the inquiry was too fact-specific to
    be decided as a matter of law, and so it denied both
    sides’ motions for summary judgment. It also held that
    defendant Ernesto Velasco, the former Director of the
    Jail and the only County defendant sued in both his
    official and individual capacities, was not entitled to
    summary judgment or qualified immunity at that stage.
    After explaining its rulings on the parties’ motions
    for summary judgment, the court addressed class certifica-
    tion. It rejected the Rule 23(b)(2) class for injunctive
    relief on the basis of its prior determination that Arreola
    lacked individual standing to pursue an injunction. The
    court then denied, without prejudice, the certification of
    a Rule 23(b)(3) class for damages, because of its doubts
    at that point in the proceedings about whether Arreola
    could show that his claims were typical of the class as
    a whole, that class issues predominated, and that a class
    action was a superior, fair, and efficient method for
    resolving the controversy. The order noted that “[i]f
    Arreola wishes to pursue class certification on the
    damages claim, he must renew his motion by no later
    than February 20, 2007.” Arreola did not do so; instead,
    he requested permission from this court to file an inter-
    locutory appeal under Rule 23(f), challenging the denial
    of certification for each class, and those issues are now
    before us.
    10                                                No. 07-1700
    While his appeal was pending, however, the district
    court set a trial date for the individual damages claims
    against the County defendants that had survived sum-
    mary judgment. Arreola moved to stay those proceedings
    pending the outcome of this appeal, but the district court
    denied his request. On August 22, 2007, he tried his luck
    in this court, invoking Rule 23(f) in support of a motion
    to stay the trial. After receiving an explanation from
    the district court, this court issued an order on Septem-
    ber 5, 2007, granting Arreola’s motion to stay trial on his
    individual claims against the County pending resolution
    of this appeal.
    II
    To obtain class certification, a plaintiff must satisfy the
    requirements of FED. R. C IV. P. 23(a) and fall within at least
    one of the categories identified in Rule 23(b). Gen. Tel. Co.
    v. Falcon, 
    457 U.S. 147
    , 156 (1982); Harriston v. Chi. Tribune
    Co., 
    992 F.2d 697
    , 703 (7th Cir. 1993). Failure to meet any
    of the Rule’s requirements precludes class certification.
    Harriston, 
    992 F.2d at 703
    . Recognizing that Rule 23 gives
    the district courts “broad discretion to determine
    whether certification of a class-action lawsuit is appro-
    priate,” this court reviews such decisions deferentially,
    Chavez v. Ill. State Police, 
    251 F.3d 612
    , 629 (7th Cir. 2001),
    and will “reverse a district court’s ruling regarding class
    certification only when we conclude that the district court
    abused its discretion in reaching its decision.” Harriston,
    
    992 F.2d at 703
    .
    No. 07-1700                                                 11
    Though he acknowledges the general applicability of
    the abuse-of-discretion standard of review, Arreola
    contends that where, as here, the district court has
    denied the proposed Rule 23(b)(2) class because it has
    determined that the plaintiff lacks standing, our review
    of the underlying standing question should be de novo. In
    general he is correct that “[w]hether a party has standing
    to bring a ‘case or controversy’ before the court is a ques-
    tion of law that this court reviews de novo.” Winkler v. Gates,
    
    481 F.3d 977
    , 982 (7th Cir. 2007). If factual findings
    entered into the district court’s decision, we review
    those for clear error. 
    Id.
    We agree with Arreola that the question of his standing
    is an antecedent legal issue that we must resolve before
    proceeding to our evaluation of the district court’s class
    certification decision. See Payton v. County of Kane, 
    308 F.3d 673
    , 676 (7th Cir. 2002) (in the context of appellate
    review of denial of class certification, explaining that legal
    questions of standing and mootness receive de novo re-
    view). Compare Mace v. Van Ru Credit Corp., 
    109 F.3d 338
    ,
    340 (7th Cir. 1997) (“Ordinarily a denial of class certifica-
    tion is reviewable for abuse of discretion. But here the
    district court has determined that the FDCPA bars serial
    class action suits. This determination is purely legal, and
    we review de novo.” (citations omitted)).
    Although the two concepts unfortunately are blurred at
    times, standing and entitlement to relief are not the
    same thing. Standing is a prerequisite to filing suit, while
    the underlying merits of a claim (and the laws
    governing its resolution) determine whether the plaintiff
    12                                                  No. 07-1700
    is entitled to relief. As we noted in Payton, supra, “Article III
    requires that the plaintiff has suffered an injury in fact
    which is fairly traceable to the challenged action of the
    defendant and likely, as opposed to merely speculative,
    to be redressed by a favorable decision.” 
    308 F.3d at 677
    (internal quotation marks omitted); see also Lujan v.
    Defenders of Wildlife, 
    504 U.S. 555
    , 560-61 (1992). When
    deciding questions of standing, courts must look at the
    case as a whole, rather than picking apart its various
    components to separate the claims for which the
    plaintiff will be entitled to relief from those for which he
    will not. If the court becomes too enmeshed in the plain-
    tiff’s entitlement to relief, it will stray beyond the
    standing inquiry into the merits. Here, the district court
    appears to have made just this error when it found that
    Arreola “lacked standing to pursue injunctive relief ” as a
    result of the fact that he was no longer housed at the
    Jail and was unlikely to return at all—much less to return
    with a lower-extremity fracture that would require the
    use of crutches or a cane—such that he would be reason-
    ably likely to be subjected to the Policy again. As we
    explain, the district court was correct to see a problem
    with this part of Arreola’s case, but the problem is not one
    of standing.
    Arreola satisfied each of the Article III requirements
    for standing to sue. His complaint alleged an “injury in
    fact” that is traceable to the Crutch Policy and can be
    redressed by a lawsuit. See Payton, 
    308 F.3d at 677
    . While
    it is true that he may no longer be entitled to all types
    of relief that he requested, the law does not preclude a
    No. 07-1700                                              13
    plaintiff from filing suit simply because some forms of
    relief may be unavailable, or indeed because in the end
    he cannot prove that he is entitled to any relief. Just as
    we observed in Payton, the inherent problem with the
    idea of “standing to bring a class action” is that it
    “conflat[es] the standing inquiry with the inquiry under
    Rule 23 about the suitability of a plaintiff to serve as a
    class representative[.]” 
    Id.
     Though we recognize that
    prior decisions of this and other courts have sometimes
    used this kind of terminology, nothing has turned on it.
    In our view, it is best to confine the term “standing” to
    the Article III inquiry and thus to keep it separate from
    the plaintiff’s entitlement to relief or her ability to
    satisfy the Rule 23 criteria. Cf. Harriston, 
    992 F.2d at 703
    (“To have standing to sue as a class representative, the
    plaintiff must be part of the class and possess the same
    interest and suffer the same injury as the class members.”
    (quoting E. Tex. Motor Freight Sys., Inc. v. Rodriguez, 
    431 U.S. 395
    , 403 (1977) (emphasis added) (internal quotation
    marks omitted))); Holmes v. Fisher, 
    854 F.2d 229
     (7th Cir.
    1988).
    We accordingly conclude that Arreola did have
    standing to pursue his lawsuit. Whether he is entitled to
    relief on any or all of those claims and whether he may
    serve as an adequate class representative for others assert-
    ing such claims are separate questions, to which we
    will return shortly.
    14                                                No. 07-1700
    III
    A
    Before addressing the requirements of Rule 23, we
    must dispose of two arguments that the County
    defendants have asserted. First, they contend that the
    district court should not have allowed Arreola to file
    his second amended complaint—which first asserted the
    class claims—primarily because Arreola did not attempt
    to file it until two and one-half years after commencing
    his suit. This was a matter, however, well within the
    district court’s discretion. See F ED. R. C IV. P. 15(a). As
    the County acknowledges, district courts have broad
    discretion to deny leave to amend where there is undue
    delay, bad faith, dilatory motive, repeated failure to
    cure deficiencies, undue prejudice to the defendants, or
    where the amendment would be futile, see Foman v. Davis,
    
    371 U.S. 178
    , 182 (1962); Thompson v. Ill. Dep’t of Prof’l
    Regulation, 
    300 F.3d 750
    , 759 (7th Cir. 2002). But, even
    assuming that any of those conditions were present here
    (and we see none), the district court’s discretion under
    Rule 15(a) is not a one-way street: it applies equally to
    decisions to deny and to grant leave to amend. In
    response to the County’s accusation that Arreola was
    “dilatory” in raising his class claims, the district court
    stated that although “this has delayed a long time . . . [t]hat
    is not Mr. Arreola’s fault,” because his first lawyer
    dropped the ball, which led the court to recruit new
    counsel, who, understandably, needed “time . . . to get
    up to speed.” For the same reasons, we reject the County’s
    attempt to persuade us that Arreola’s timing ran afoul
    of Rule 23(c).
    No. 07-1700                                               15
    The County also contends that the second amended
    complaint should not have been allowed because the
    class claims do not “relate back” to Arreola’s initial com-
    plaint. It reasons that the unnamed putative class mem-
    bers are time-barred under the class action tolling
    doctrine established by American Pipe & Construction Co.
    v. Utah, 
    414 U.S. 538
     (1974), and Crown Cork & Seal Co., Inc.
    v. Parker, 
    462 U.S. 345
     (1983). But the district court ad-
    dressed this point, finding that relation back is appropri-
    ate here because “it has been clear from the outset, even
    from the pro se complaint, that Mr. Arreola was challeng-
    ing the same policy that is at issue in the class action
    claim.” Under Rule 15(c)(1)(B), nothing more is required.
    That rule provides that an amended pleading relates
    back to the date of the original pleading where “the
    amendment asserts a claim or defense that arose out of
    the conduct, transaction, or occurrence set out—or at-
    tempted to be set out—in the original pleading.” (We note
    as well that although the amended pleading changed the
    potential group of plaintiffs in the case, it did not change
    the party or the naming of the party against whom the
    claim was asserted, and thus there is no problem under
    Rule 15(c)(1)(C).) The district court did not abuse its
    discretion in finding relation back to be appropriate here.
    Finally, the County asserts that the second amended
    complaint failed properly to plead numerosity for pur-
    poses of Rule 23(a)(1). This argument goes nowhere. The
    County criticizes Arreola’s numerosity allegations as
    being nothing but “bare bones,” but under the federal
    notice-pleading regime, that is all that is required. The
    County then argues that Arreola failed to establish
    16                                             No. 07-1700
    numerosity, but in doing so it moves from an argument
    about the pleadings to a question of the merits (at a
    minimum, the merits of the class-certification issue), and
    so we need not let the County’s challenge to the
    propriety of the second amended complaint detain us
    any longer.
    The second major preliminary argument that the
    County raises is one based on a consent decree entered in
    the case of Duran v. Brown (formerly Duran v. Dart), No. 74
    C 2949 (N.D. Ill. Nov. 14, 2003). According to the
    County, the decree requires all claims for injunctive
    relief regarding conditions in the Cook County Jail to be
    brought as contempt actions in the Duran case, which was
    then pending in the Northern District of Illinois. The
    County concedes that the Duran decree applies to
    pretrial detainees and that Arreola was a post-conviction
    inmate during his temporary stay at the Jail. Nonetheless,
    it says, he was somehow bound to the decree as a “third-
    party beneficiary.”
    This argument is convoluted and ultimately unavailing.
    First, if Arreola is, as the County argues, a third-party
    beneficiary to the decree, we have trouble seeing how his
    status as a “beneficiary” would operate to preclude him
    from filing his claim against the County defendants.
    Second, and more crucially, the consent decree provides
    no basis for denying Arreola’s pursuit of class certifica-
    tion. The decree stems from a case brought in 1974 by
    pretrial detainees to address overcrowding problems at
    the Jail. The order on which the County relies was issued
    several months after Arreola filed his lawsuit, and so it
    No. 07-1700                                              17
    would apply to Arreola only if he someday returns to the
    Jail. That, of course, is the very event that the County
    asserts is so unlikely to occur that Arreola has no current
    stake in an action to enjoin the Crutch Policy. Arreola also
    points out that the County raised this argument in the
    district court; Arreola moved to strike, but the district
    court declined to issue a ruling either way, and so we
    have no findings from the lower court addressing
    whether the decree applies here or not.
    We hold that the Duran decree has no bearing on this
    case. It addressed overcrowding and related issues (such
    as food service, personal hygiene, access to the law
    library, exercise, and emergency situations), none of
    which comes close to the Jail’s policy with respect to
    medical devices in the living units.
    B
    We are now ready to address the proper subject of this
    Rule 23(f) appeal: whether the district court erred in its
    class-certification rulings. A plaintiff seeking class cer-
    tification must satisfy all of the criteria enumerated in
    Rule 23(a)—numerosity, commonality, typicality, and
    adequacy of representation—and fall within at least one
    subsection of Rule 23(b). Arreola asserts that he has
    satisfied Rule 23(a) and that the class he would like to
    represent is a hybrid one covered by both Rule 23(b)(2)
    and 23(b)(3).
    18                                             No. 07-1700
    1
    Although there is considerable overlap for purposes of
    Rule 23(a) between Arreola’s proposed class actions
    under Rule 23(b)(2) for injunctive relief and under
    Rule 23(b)(3) for damages, we think it best to analyze the
    two separately. We begin with his proposed effort to
    represent a class of inmates at the Jail who want injunc-
    tive relief against the Crutch Policy—his proposed Rule
    23(b)(2) class.
    Rule 23(a)(1): Numerosity
    The County argues that Arreola failed to establish this
    requirement by neglecting to provide detailed and
    specific information to the trial court about the potential
    number and identities of possible class members. It is true
    that the party supporting the class cannot rely on “mere
    speculation” or “conclusory allegations” as to the size of
    the putative class to prove that joinder is impractical for
    numerosity purposes. Roe v. Town of Highland, 
    909 F.2d 1097
    , 1100 n.4 (7th Cir. 1990). But the County’s argument
    here is based on its contention that Arreola never
    identified a single potential class member and never
    provided sufficiently detailed testimony from the
    prison physicians to support the existence of a definitive,
    identifiable class.
    The record does not bear out the County’s allegations. As
    early as October 10, 2006, Arreola provided the names
    and last-known addresses of 14 potential class members.
    We can assume that 14 would not be enough, but that is
    No. 07-1700                                                 19
    not the only evidence in the record. The physicians’
    testimony supports a much larger estimate. For example,
    an attending orthopedist who supervises the Cermak
    Orthopedic Clinic one day per week stated in his deposi-
    tion that, on average, he sees at least one inmate each week
    who has a fresh fracture requiring a prescription for
    crutches. Arreola’s proposed class includes inmates
    affected by the Policy as of mid-2001, meaning that the
    number of inmates with fractures for whom this doctor
    has prescribed crutches would exceed 350. And that is just
    one physician, who supervised the orthopedic clinic one
    day each week. Moreover, because the district court
    decided the summary-judgment motions before allowing
    full briefing and argument on the class-certification
    issues, Arreola and his counsel did not have an opportu-
    nity to develop a complete factual record or to present
    alternative arguments relating specifically to class certifica-
    tion. The record as it stands shows that Arreola either
    already has established numerosity, or at a minimum
    that he has shown enough to warrant further discovery
    on the issue.
    Rule 23(a)(2): Commonality
    Arreola argues that most of the issues involved in this
    case, and especially the constitutionality of the Crutch
    Policy, are common to all potential class members. With
    respect to his proposed (b)(2) class, we agree with him.
    The County does not seem to contest this point; its argu-
    ments about commonality focus only on the problems
    it sees with the potential (b)(3) class, to which we return
    below.
    20                                              No. 07-1700
    Rule 23(a)(3): Typicality
    With respect to typicality, the County’s argument echoes
    its point on numerosity: because Arreola did not provide
    “the name of a single putative class member who
    is similarly situated to Arreola,” it asserts, he cannot
    possibly show that his claims are “typical” of other class
    members’ claims. We have summarized typicality
    analysis as follows:
    A claim is typical if it arises from the same event or
    practice or course of conduct that gives rise to the
    claims of other class members and her claims are
    based on the same legal theory. Even though some
    factual variations may not defeat typicality, the re-
    quirement is meant to ensure that the named represen-
    tative’s claims have the same essential characteristics
    as the claims of the class at large.
    Oshana v. Coca-Cola Co., 
    472 F.3d 506
    , 514 (7th Cir. 2006)
    (quotation marks and citations omitted). According to
    the County, Arreola cannot establish typicality because
    he has not shown that the class is “sufficiently identifiable
    or definite.” But that is not part of the typicality inquiry;
    it is a complaint about class definition. The County has not
    argued that the class definition was too broad, or too
    vague, for it to know who its adversary is, and it is too
    late now to raise a new argument. As far as typicality
    is concerned, we are satisfied that Arreola has raised
    claims that “arise[] from the same event or practice or
    course of conduct” as his own.
    Once again, the record does not support the County’s
    accusations that Arreola’s evidence lacks sufficient detail
    No. 07-1700                                                 21
    to establish typicality. As we mentioned earlier, by
    October 10, 2006, Arreola had filed documents showing
    that he was in the same boat as hundreds of patients with
    fresh or acute lower-extremity fractures who needed
    crutches. He also produced the deposition testimony of
    several officers working at the Jail, both in Division Nine
    and in other divisions, who testified that they never
    allowed inmates to keep their crutches in the living units,
    and, crucially, that they never had transferred an inmate
    to Division Eight (the Handicapped Unit) because the
    inmate had been prescribed crutches. The physicians who
    testified also said that they had no authority to change
    inmates’ housing assignments. If believed, that would
    show that any decision to transfer an inmate or not to
    transfer was, de facto, the responsibility of the corrections
    officers. Arreola’s claims are typical of those of his poten-
    tial fellow class members.
    Rule 23(a)(4): Adequacy of Representation
    It is here that Arreola’s efforts to serve as class represen-
    tative for a Rule 23(b)(2) class meet their demise. At this
    point, we return to the district court’s analysis of the
    question whether Arreola possesses a sufficient personal
    stake in prospective relief to be an adequate representa-
    tive for a class seeking to enjoin the Policy. As the district
    court found (using “standing” terminology), while Arreola
    has a concrete stake in his claim for damages, his interest
    in prospective relief is too tenuous (and was too tenuous
    even when he first filed this lawsuit) to permit an award
    of injunctive relief on his individual claims. By the
    22                                               No. 07-1700
    time Arreola filed this lawsuit, he was no longer at the
    Jail. The likelihood that he will return to the Jail and will
    once again be suffering from a lower-extremity fracture
    requiring crutches is too speculative to support a right to
    an injunction on his part. As we stated in Holmes:
    To permit the certification of a class headed by a
    “representative” who did not have a live controversy
    with the defendant on the day the suit began would
    be to jettison the last vestiges of the case-or-contro-
    versy requirement in class actions. And why? Holmes
    can pursue his claim for damages, and the precedent
    will set the rule to be followed in the future. Or some
    other litigant may file suit with a live claim. There is
    no need to throw away a venerable constitutional
    rule just to retain a replaceable champion.
    
    854 F.2d at 233
    .
    Arreola argues that because (1) the Jail typically serves
    only as a temporary housing facility for inmates, (2) the
    nature of injuries requiring a prescription for crutches
    is often transitory, and (3) the Prison Litigation Reform
    Act strictly requires prisoners to exhaust their admin-
    istrative remedies before filing a lawsuit, the unique
    circumstances of this case render it highly unlikely that
    any “champion” could emerge to “replace” Arreola. We
    are not convinced: indeed, some people need crutches
    for a much longer period of time than Arreola
    apparently did, and we cannot conclude that it would be
    impossible for a more suitable representative of a Rule
    23(b)(2) class to emerge. This also means that, contrary
    to Arreola’s arguments, this case is not a good candidate
    No. 07-1700                                                 23
    for application of the “capable of repetition, yet evading
    review” concept. See U.S. Parole Comm’n v. Geraghty, 
    445 U.S. 388
     (1980). The district court did not abuse its dis-
    cretion in declining to certify Arreola as the representative
    for an injunctive-relief class.
    2
    Arreola’s pursuit of certification for a damages class
    under Rule 23(b)(3) is tied up, to a certain degree, with his
    individual claim for damages. As we noted earlier, the
    district court denied certification of his (b)(3) class
    without prejudice, explaining that Arreola could re-file
    the motion to certify a damages class within three weeks.
    The County finds fault in Arreola’s failure to do so, but
    that is only part of the story. In fact, Arreola froze that
    issue in the district court by filing his motion under
    Rule 23(f) with this court and asking us to review the
    district court’s decision to deny certification under both
    subsections of Rule 23(b). Once we granted that motion,
    the issue of class certification was no longer before the
    district court, and so there was nothing for Arreola to do
    but to see it through here.
    When we turn to the district court’s ruling, we see that in
    fact there is no definitive decision granting or denying
    certification of the proposed Rule 23(b)(3) class. The
    court’s order of January 30, 2007, said only:
    The Court denies, without prejudice, Arreola’s motion
    to certify a class on his claims for damages. It is readily
    apparent that the Court’s rationale for denying sum-
    24                                               No. 07-1700
    mary judgment on Arreola’s official capacity claims
    impacts the issues of the typicality of Arreola’s claims,
    whether class issues predominate, and whether a
    class action is a superior method for fair and efficient
    adjudication of the controversy.
    Thus, the court expressed doubt about whether Arreola
    could satisfy various requirements of both Rule 23(a) and
    Rule 23(b)(3), namely, typicality, commonality, predomi-
    nance of class issues over individual ones, and the ap-
    propriateness of using the class-action device to resolve
    these claims.
    The parties’ briefs on appeal offer complete arguments
    on the question whether the district court abused its
    discretion in denying Arreola’s motion for certification of
    a damages class. That jumps the gun, in our opinion,
    because the district court did not issue a definitive rul-
    ing. We do not even know whether the district court was
    thinking of trying Arreola’s individual claim for damages
    first, and then seeing whether class certification was
    proper, although we doubt that this was the court’s plan,
    given the command in Rule 23(c)(1)(A) that “[a]t an early
    practicable time after a person sues or is sued as a class
    representative, the court must determine by order whether
    to certify the action as a class action.” (In any event, it
    should not have been the plan: Rule 23 does not create a
    form of one-way intervention under which class issues
    need not be reached unless or until the plaintiff has won or
    almost won.)
    At most, the district court has expressed some
    skepticism about Arreola’s ability to satisfy the criteria
    No. 07-1700                                               25
    for a damages class action. In a hearing that took place
    the same day it issued its order, January 30, 2007, the court
    questioned “whether Mr. Arreola’s claims are typical,
    whether a class action is a good way of dealing with this.”
    The court also commented that
    any time you have got a class action involving dam-
    ages, there is a fairly obvious issue about whether the
    likelihood of having to have individual damage hear-
    ings overwhelms the good that would come out of
    having a class action.
    Taken to its limit, this observation would mean that
    there is never a proper class action under Rule 23(b)(3), but
    that is obviously not the case. We note that even if each
    damages calculation will be fact-bound to some degree,
    many of the issues involved in this case, as we have noted
    already, would be common among all potential class
    members. It is also worth recalling that Rule 23(c)(1)(B)
    specifically recognizes the possibility of certifying not
    just “class claims,” but also class “issues.” See also
    Rule 23(c)(2)(B)(iii) (addressing notice of “the class
    claims, issues, or defenses”).
    Although the extent of each class member’s personal
    damages might vary, district judges can devise solutions
    to address that problem if there are substantial common
    issues that outweigh the single variable of damages
    amounts. See Carnegie v. Household Int’l, Inc., 
    376 F.3d 656
    ,
    661 (7th Cir. 2004) (“Rule 23 allows district courts to
    devise imaginative solutions to problems created by the
    presence in a class action litigation of individual damages
    issues.”). It would be premature for this court to express
    26                                                  No. 07-1700
    an opinion one way or the other on the suitability of
    Arreola’s case for (b)(3) class treatment. Our only point
    here is that the need for individual damages determina-
    tions does not, in and of itself, require denial of his motion
    for certification. See, e.g., Allen v. Int’l Truck & Engine Corp.,
    
    358 F.3d 469
    , 472 (7th Cir. 2004); In re Visa Check/
    MasterMoney Antitrust Litig., 
    280 F.3d 124
    , 141 (2d Cir.
    2001).
    IV
    The district court’s denial of class certification under
    Rule 23(b)(2) is A FFIRMED. On the understanding that the
    court has, as yet, made no definitive ruling on Arreola’s
    motion for certification under Rule 23(b)(3), we R EMAND
    for further proceedings consistent with this opinion on
    that motion. Finally, bearing in mind the need for a timely
    decision on class certification as required by Rule
    23(c)(1)(A), we also R EMAND for further proceedings
    consistent with this opinion in Arreola’s individual case
    for damages. Each party shall bear its own costs on appeal.
    10-14-08