Arreola, Gilbert v. Godinez, Salvador ( 2008 )

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