Dewalt v. Hooks ( 2022 )

IN THE SUPREME COURT OF NORTH CAROLINA
2022-NCSC-105
No. 165A21
Filed 4 November 2022
ROCKY DEWALT, ROBERT PARHAM, ANTHONY MCGEE, and SHAWN
BONNETT, individually and on behalf of a class of similarly situated persons
v.
ERIK A. HOOKS, in his official capacity as Secretary of the North Carolina
Department of Public Safety, and the NORTH CAROLINA DEPARTMENT OF
PUBLIC SAFETY
Appeal pursuant to N.C.G.S. § 7A-27(a)(4) from an order denying plaintiffs’
motion for class certification entered on 22 February 2021 by Judge James E. Hardin
Jr. in Superior Court, Wake County. Heard in the Supreme Court on 30 August 2022.
ACLU of North Carolina Legal Foundation by Daniel K. Siegel and Kristi
Graunke, for plaintiff-appellants.
Joshua H. Stein, Attorney General, by Orlando L. Rodriguez, Special Deputy
Attorney General, Mary Carla Babb, Special Deputy Attorney General, and
James B. Trachtman, Special Deputy Attorney General, for
defendant-appellees.
Aviance Brown, Irving Joyner, Daryl Atkinson, Whitley Carpenter, and Ashley
Mitchell, for North Carolina Conference of the NAACP, amicus curiae.
Lockamy Law Firm, by Scott Holmes; and Roderick & Solange MacArthur
Justice Center, Northwestern Pritzker School of Law, by Daniel Greenfield,
Bradford Zukerman, and Kathrina Szymborski, for Professors Sharon
Dolovich, Alexander A. Reinert, Margo Schlanger, and John F. Stinneford,
amici curiae.
Nichad Davis and Benjamin I. Friedman, Professors and Practitioners of
Psychiatry, Psychology, and Medicine, for amici curiae.
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Opinion of the Court
NEWBY, Chief Justice.
¶1 In this case we consider whether the trial court erred by denying plaintiffs’
motion for class certification. Plaintiffs are inmates in North Carolina Department of
Public Safety (DPS) custody. Plaintiffs brought a class action lawsuit against
defendants seeking to represent certain individuals in DPS custody who are being or
will be subjected to solitary confinement. Plaintiffs do not challenge the use of solitary
confinement in every housing setting or allege that solitary confinement is per se
unconstitutional. Rather, plaintiffs allege that defendants’ policies and practices
concerning specific restrictive housing assignments violate the state constitution. The
trial court denied plaintiffs’ motion for class certification. The trial court concluded
plaintiffs failed to establish a common predominating issue, plaintiffs did not
demonstrate that the named representatives would fairly and adequately represent
the class, and that litigating as a class was not the superior method of adjudication.
Plaintiffs appealed directly to this Court. Because the trial court did not abuse its
discretion, we affirm the trial court’s order.
¶2 On 16 October 2019, plaintiffs1 filed a class action lawsuit seeking to certify a
class of current and future inmates assigned to one of five restrictive housing
classifications. Plaintiffs alleged the conditions of confinement across the five
1 Plaintiffs are Rocky Dewalt, Robert Parham, Anthony McGee, and Shawn Bonnett.
Plaintiffs sought to appoint Robert Parham, Anthony McGee, and Shawn Bonnett as class
representatives and requested that Rocky Dewalt remain a named plaintiff.
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restrictive housing assignments presented the same substantial risk of harm to all
individuals and constituted cruel or unusual punishment.
¶3 The five challenged restrictive housing settings are: Restrictive Housing for
Disciplinary Purposes (RHDP), Restrictive Housing for Control Purposes (RHCP),
High Security Maximum Control (HCON), Restrictive Housing for Administrative
Purposes (RHAP), and the first two phases of the Rehabilitative Diversion Unit
(RDU).
¶4 RHDP is a short-term placement and “presumptive sanction” for disciplinary
infractions, such as disobeying an order, possessing a cell phone, refusing a drug test,
or using disrespectful or defamatory language. Individuals assigned to RHDP may
have personal property in their cells, are allowed limited telephone privileges, receive
visitation rights, and have access to cell study materials, such as educational
programs and college coursework. Prison staff may impose up to twenty or thirty days
of confinement in RHDP. Between October 2018 and October 2019, the average
length of a placement in RHDP was eleven days.
¶5 RHCP “is a long-term restrictive housing assignment for the removal of [an
incarcerated person] from the general offender population to confinement in a secure
area.” RHCP is reserved for offenders who have displayed “disruptive behavior,
assaultive actions, threats to the safety of staff or other offenders, or threats to the
security and operational integrity of the facility.” People in RHCP receive one hour of
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recreation time five days a week and have access to a shower three times a week.
They eat all meals in their cell, may not attend religious, educational, or vocational
programs outside of their cell, and have no guaranteed telephone or canteen access.
People in RHCP are entitled to two noncontact visits every thirty days, but visitation
privileges are suspended for at least twelve months if an individual is found guilty of
assault on a staff member resulting in physical injury. RHCP classifications are
reviewed every six months. If placement in RHCP is due to assault on a staff member
resulting in physical injury, however, assignments are reviewed at twelve months.
Between October 2018 and October 2019, the average length of stay in RHCP was
131 days.
¶6 HCON is the most restrictive housing assignment and is for “offenders who
pose the most serious threat to the safety of staff and other offenders or who . . .
require more security than can be afforded in [other housing settings].” Review of an
HCON classification occurs every six months, or it occurs every twelve months if
placement is due to assault on a staff member resulting in physical injury. People
who are removed from HCON are automatically placed in RHCP, RDU, or the
Therapeutic Diversion Unit. Between October 2018 and October 2019, the average
length of stay in HCON was 154 days.
¶7 RHAP is a temporary placement for administrative, rather than disciplinary,
purposes. Individuals may be placed in RHAP to protect staff members and other
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offenders from threats of harm, to minimize the risk of escape, to preserve order, to
provide control while completing an investigation, or to serve as a “cooling off
measure[,]” as referred to in the policy. While assigned to RHAP, individuals have
access to medical and mental health services, receive daily visits from a health care
staff member, may have personal property in their cells, and are allowed telephone
privileges. In addition, individuals in RHAP may receive an unlimited number of
one-hour, noncontact visits. Between October 2018 and October 2019, the average
length of stay in RHAP was eight days.
¶8 RDU is a placement program “designed as a safe alternative to segregation,
providing positive reinforcements to increase desired behaviors, and decrease
unwanted behaviors through . . . appropriate consequences . . . [and] positive
reinforcement.” Individuals in RDU housing are allowed certain authorized personal
property in their units, such as pencils, pens, books, a radio, a deck of cards, and
hygiene items. From October 2018 to October 2019, the average length of stay in RDU
was between twelve and fourteen months.
¶9 Defendants filed their answer on 21 January 2020. On 4 February 2020, the
matter was designated as exceptional pursuant to Rule 2.1 of the General Rules of
Practice for the Superior and District Courts and assigned to Judge James E. Hardin
Jr. Plaintiffs filed their motion for class certification on 24 April 2020 pursuant to
Rule 23(a) of the North Carolina Rules of Civil Procedure. See N.C.G.S. § 1A-1, Rule
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23(a) (2021). Plaintiffs thereafter took discovery and submitted evidence in support
of their motion. Defendants filed their response in opposition with supporting
evidence on 12 August 2020. The trial court held a Webex hearing on 1 December
2020 and heard oral argument from both parties.
¶ 10 On 22 February 2021, the trial court denied plaintiffs’ motion for class
certification and found that a certifiable class did not exist for three independent
reasons: (1) plaintiffs failed to demonstrate a common predominating issue among
the group of potential class members, (2) plaintiffs did not establish that the named
representatives would fairly and adequately represent the interests of all class
members, and (3) litigating this case as a class action was not the superior method of
adjudication. Plaintiffs appealed directly to this Court under N.C.G.S. § 7A-27(a)(4).
¶ 11 This Court reviews a trial court’s class certification order for abuse of
discretion. Fisher v. Flue-Cured Tobacco Coop. Stabilization Corp., 369 N.C. 202, 209,
794 S.E.2d 699, 706 (2016). “[T]he test for abuse of discretion is whether a decision
‘is manifestly unsupported by reason[ ]’ or ‘so arbitrary that it could not have been
the result of a reasoned decision . . . .’ ” Frost v. Mazda Motor of Am., Inc., 353 N.C.
188, 199, 540 S.E.2d 324, 331 (2000) (quoting Little v. Penn Ventilator Co., 317 N.C.
206, 218, 345 S.E.2d 204, 212 (1986)). “Within this general standard, when
addressing a class certification order, this Court has recognized that conclusions of
law are reviewed de novo, and findings of fact are considered binding if supported by
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competent evidence.” McMillan v. Blue Ridge Cos., 379 N.C. 488, 2021-NCSC-160, ¶
7 (citing Fisher, 369 N.C. at 209, 794 S.E.2d at 706).
¶ 12 Rule 23 of the North Carolina Rules of Civil Procedure authorizes class action
lawsuits. Rule 23 provides that “[i]f persons constituting a class are so numerous as
to make it impracticable to bring them all before the court, such of them, one or more,
as will fairly insure the adequate representation of all may, on behalf of all, sue or be
sued.” N.C.G.S. § 1A-1, Rule 23(a).2 “The party seeking to bring a class action under
Rule 23(a) has the burden of showing that the prerequisites to utilizing the class
action procedure are present.” Crow v. Citicorp Acceptance Co., 319 N.C. 274, 282,
354 S.E.2d 459, 465 (1987) (footnote omitted). First, the class representatives must
demonstrate the existence of a class. Id. at 277, 354 S.E.2d at 462. “A proper class
exists ‘when the named and unnamed members each have an interest in either the
same issue of law or of fact, and that issue predominates over issues affecting only
individual class members.’ ” Fisher, 369 N.C. at 209, 794 S.E.2d at 705 (quoting Crow,
319 N.C. at 280, 354 S.E.2d at 464). A common issue predominates when plaintiffs
demonstrate that the potential class members’ claims share a common issue capable
of resolution “in one stroke.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350, 1131
2 There are notable differences between Rule 23 of the North Carolina Rules of Civil
Procedure and Rule 23 of the Federal Rules of Civil Procedure governing class action
lawsuits. Nonetheless, the federal cases which address the provision of the federal rule that
is similar to the state provision are instructive to our analysis.
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S.Ct. 2541, 180 L. Ed. 2d 374 (2011) (providing that plaintiffs’ “claims must depend
upon a common contention . . . capable of class[-]wide resolution—which means that
determination of its truth or falsity will resolve an issue that is central to the validity
of each one of the claims in one stroke”).
¶ 13 In addition to this initial requirement, the class representatives must show:
(1) that they will fairly and adequately represent the
interests of all members of the class; (2) that they have no
conflict of interest with the class members; (3) that they
have a genuine personal interest, not a mere technical
interest, in the outcome of the case; (4) that they will
adequately represent members outside the state; (5) that
class members are so numerous that it is impractical to
bring them all before the court; and (6) that adequate
notice is given to all class members.
Fisher, 369 N.C. at 209, 794 S.E.2d at 705–06 (internal quotations omitted) (quoting
Faulkenbury v. Teachers’ & State Emps.’ Ret. Sys., 345 N.C. 683, 697, 483 S.E.2d 422,
431 (1997)).
¶ 14 When a party seeking class certification meets these prerequisites, “it is left to
the trial court’s discretion ‘whether a class action is superior to other available
methods for the adjudication of th[e] controversy.’ ” Id. at 209, 794 S.E.2d at 706
(alteration in original) (quoting Beroth Oil Co. v. N.C. Dep’t of Transp., 367 N.C. 333,
337, 757 S.E.2d 466, 470 (2014)).
Class actions should be permitted where they are likely to
serve useful purposes such as preventing a multiplicity of
suits or inconsistent results. The usefulness of the class
action device must be balanced, however, against
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inefficiency or other drawbacks. . . . [T]he trial court has
broad discretion in this regard and is not limited to
consideration of matters expressly set forth in Rule 23 or
in [existing case law].
Crow, 319 N.C. at 284, 354 S.E.2d at 466. As such, “the touchstone for appellate
review of a Rule 23 order . . . is to honor the ‘broad discretion’ allowed the trial court
in all matters pertaining to class certification.” Frost, 353 N.C. at 198, 540 S.E.2d at
331 (citing Crow, 319 N.C. at 284, 345 S.E.2d at 466).
¶ 15 Here the trial court identified three distinct bases for denying plaintiffs’ motion
for class certification: (1) no common predominating issue; (2) inadequacy of plaintiffs
as class representatives; and (3) a class action is not a superior method of
adjudication. Any of the three independent bases would have been adequate to
support the denial of class certification. However, because we conclude the trial court
did not abuse its discretion in determining there is no common predominating issue,
we limit our review to that basis.
¶ 16 The question here is whether the trial court abused its discretion in concluding
plaintiffs failed to demonstrate a common predominating issue among the proposed
class members. The trial court determined plaintiffs presented insufficient evidence
to connect DPS’s practices and policies to an alleged risk of harm. In an attempt to
support their claim that DPS’s practices caused all class members to face risks of
similar harm, plaintiffs relied on four studies. The trial court found, however, that
only two studies concerned DPS and only one addressed its restrictive housing
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practices. One report, “suggest[ing] that exposure to restrictive housing is associated
with an increased risk of death during community reentry[,]” provided insufficient
evidence to support plaintiffs’ claim because it was a correlational analysis that, by
the authors’ admission, could not support conclusions of causation. Additionally, the
study was based on observational data that failed to consider confounding factors
which could have affected the study’s ultimate outcome. Accordingly, this study could
not provide concrete support to plaintiffs’ claim that restrictive housing causes an
increase in the risk of post-release mortality.
¶ 17 Likewise, the trial court concluded the second relevant report (the Vera
Report), which was prepared by the Vera Institute of Justice, was insufficient to
connect DPS’s practices to the alleged risk of harm.3 The Vera Report commended
DPS on its previous reform efforts, suggested that DPS “continue[ ] implementation
of [both] current and future reforms,” and noted that DPS’s restrictive housing
population decreased by 10% in the year following the study. Furthermore, as the
trial court concluded, all but one of DPS’s policies discussed in the Vera Report has
since been revised.
3 In 2016 DPS partnered with the Vera Institute of Justice to evaluate DPS’s
restrictive housing policies and practices. The Vera Report “outline[d] the findings of th[e]
assessment and provide[d] recommendations to [DPS] on how to safely reduce its use of
restrictive housing.” The experiences of the named plaintiffs and other affiants, who have
collectively experienced each of the five restrictive housing settings, generally align with the
Vera Report’s findings.
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¶ 18 Aside from these two reports, plaintiffs failed to present additional evidence,
such as specific studies and expert witness reports to support their claim that DPS’s
policies and practices create a uniform risk of harm to individuals assigned to each of
the challenged restrictive housing settings. This lack of evidentiary support is
distinguishable from the evidence presented by the claimants in many of the federal
cases upon which plaintiffs rely. See Parsons v. Ryan, 754 F.3d 657, 669, 678 (9th Cir.
2014) (presenting numerous expert reports and ten specifically defined policies to
which all class members were subjected); see, e.g., Braggs v. Dunn, 257 F. Supp. 3d
1171, 1236 (M.D. Ala. 2017); Davis v. Baldwin, No. 3:16-CV-600-MAB, 2021 WL
2414640 (S.D. Ill. June 14, 2021). Based upon the minimal evidence specific to DPS’s
restrictive housing practices, the trial court did not abuse its discretion in concluding
plaintiffs failed to establish that the potential class members’ claims share a common
issue capable of resolution “in one stroke.” See Wal-Mart Stores, Inc., 564 U.S. at 350.
¶ 19 The trial court also concluded that the variety of penological purposes across
the challenged housing classifications are fundamental distinctions that prevent a
finding that a common issue predominates across such a broad class. Further, the
circumstances which necessitate placement in restrictive housing and the length of
each assignment require an individualized assessment that preclude finding a
common predominating issue.
¶ 20 The lack of a “legitimate penological justification” is relevant in analyzing a
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conditions-of-confinement claim. See Porter v. Clarke, 923 F.3d 348, 362–63 (4th Cir.
2019). The record evidence supports the trial court’s conclusion and demonstrates
that each challenged housing setting serves a distinct purpose. The record shows that
RHDP is used exclusively for disciplinary purposes and is reserved for incarcerated
individuals who have committed a disciplinary infraction, while RHAP serves
administrative purposes, such as to protect staff, minimize the risk of escape, and
preserve order. Unlike both RHDP and RHAP, the purpose of RHCP is to manage
incarcerated individuals who have demonstrated a risk to the operations of a facility.
Alternatively, HCON is reserved for individuals who pose the most serious threat and
require an increased level of security over that offered by the other settings. Finally,
the purpose of RDU is to discourage unwanted behaviors through appropriate
consequences and positive reinforcement. The penological purposes served by each
housing setting thus inform the placement of an individual into the appropriate
classification, which necessarily requires an individualized assessment. As such, the
trial court did not abuse its discretion in concluding that the varying penological
purposes precluded a finding that plaintiffs established a common predominating
issue.
¶ 21 The trial court next concluded that the wide variation in the duration of
confinement in a challenged setting precluded a finding that plaintiffs established a
common predominant issue. The duration of confinement in a challenged setting is
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highly relevant to a conditions-of-confinement claim. See Hutto v. Finney, 437 U.S.
678, 686, 98 S.Ct. 2565, 57 L. Ed. 2d. 522 (1978) (“[T]he length of confinement cannot
be ignored in deciding whether the confinement meets constitutional standards.”); see
also Rice v. Corr. Med. Servs., 675 F.3d 650, 666 (7th Cir. 2012) (finding duration of
confinement as one factor in determining whether a stay in administrative
segregation constituted cruel and unusual punishment).
¶ 22 Plaintiffs contend that once individuals are placed in restrictive housing, they
are subject to the same substantial risk of harm that can manifest within fifteen days
of placement, and as such, they have established a common predominating issue. The
trial court concluded, in its discretion, that the length of time individuals spend in
restrictive housing varies across each challenged setting and impacts the nature of
each plaintiff’s claim. This conclusion is supported by the record. Placement in RHAP,
for instance, is initially limited to seventy-two hours and may be extended for up to
fifteen days with further extension requiring approval by the Facility Classification
Committee. Between October 2018 and October 2019, the average length of stay in
RHAP was eight days. RHDP, alternatively, sets a maximum assignment of thirty
days, and the average placement in RHDP between October 2018 and October 2019
was eleven days. In contrast, the average length of stay in RHCP and HCON between
October 2018 and October 2019 was 131 days and 154 days, respectively, and
placements in RHCP and HCON are reviewed less frequently. Assignments to RHCP
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and HCON are reviewed every six months in most instances and every twelve months
for individuals who assaulted and injured a staff member. Therefore, despite
plaintiffs’ claim, the differences between the challenged housing classifications are
relevant given that the duration of placement varies. Because duration of
confinement is relevant to a conditions-of-confinement claim and because the record
evidence clearly indicates significant variations in the length of stay across each
challenged restrictive housing setting, the trial court did not abuse its discretion in
concluding that this factor precluded a finding that plaintiffs established a common
predominating issue.
¶ 23 Next, the trial court concluded that each challenged housing setting has
different procedural safeguards which affect plaintiffs’ ability to establish a common
predominating issue. An assessment of procedural safeguards is relevant to a
conditions-of-confinement claim. See Porter, 923 F.3d at 359–63 (holding that
plaintiffs were placed in solitary confinement based upon being sentenced to death
but were afforded no mechanisms for removal).
¶ 24 Here the trial court’s conclusion that different procedural safeguards
accompany the challenged housing settings is supported by sufficient record evidence.
As the record reveals, initial placement in RHAP may be made by an officer-in-charge
without conducting a prior hearing or providing an opportunity to challenge the
assignment. Review by a full committee is not required unless the placement is
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extended beyond fifteen days. Alternatively, placement in RHDP requires an
investigation resulting in compilation of a disciplinary package, a prior hearing, and
an opportunity to appeal. Unlike both RHAP and RHDP, assignment to RHCP is
preceded by a six-step review process by two separate committees. Moreover, an
HCON placement requires a hearing, multiple reviews, and approval by specifically
defined staff members, while assignment to RDU is based on recent disciplinary
history and eligibility factors such as age, reading level, IQ score, and close custody
designation, rather than a hearing.
¶ 25 Plaintiffs fail to account for the variations in procedural safeguards, which are
relevant to a conditions-of-confinement claim. Such material variations hinder
plaintiffs’ ability to establish a common predominating factor. Accordingly, the trial
court did not abuse its discretion in concluding that the different procedural
safeguards for each restrictive housing classification precluded a finding that
plaintiffs established a common predominating issue.
¶ 26 Finally, the trial court concluded that the attendant conditions of each
restrictive housing setting vary significantly, are relevant to a
conditions-of-confinement claim, and prevent a finding that plaintiffs established a
common predominating issue. Plaintiffs argue, though, that class-wide issues
predominate when a class seeks injunctive relief from shared conditions that expose
all class members to the same harm, irrespective of the specific conditions of a
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particular housing assignment and individual experiences in restrictive housing.
Given several general conditions common to all forms of restrictive housing, namely
the amount of time individuals spend in their cells each day and the minimal
opportunity for human interaction they receive, plaintiffs contend the trial court
erred by considering conditions specific to the challenged restrictive housing settings.
¶ 27 Here the trial court determined that the most significant differences among
the attendant conditions occur in the frequency of visitation, the nature of recreation,
and the quantity and quality of interactions with other incarcerated people. This
finding is supported by the record.
¶ 28 The record shows that visitation rights vary across the challenged settings.
Offenders assigned to RHAP and RHDP may receive an unlimited number of
one-hour noncontact visits, while individuals in RHCP and HCON are limited to two
visits every thirty days. The record also highlights differences in which individuals
in restrictive housing settings can interact with other inmates, including by location,
whether restrained or unrestrained, frequency, and duration. Offenders placed in
RDU, for instance, may recreate in an open yard with other inmates and access the
gym. Individuals placed in the other restrictive housing settings, however, are limited
to outdoor recreation, and the classifications differ on whether individual or group
recreation is permitted. Further, the trial court found the availability of in-cell
activities to be a relevant attendant condition. The degree to which individuals in
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restrictive housing can participate in cell study programs and other types of
stimulating activities varies by housing assignment. Placement in RDU affords
individuals the opportunity to complete educational courses, receive high school and
college credit, and participate in short-term work assignments similar to those offered
in general population. Alternatively, offenders assigned to RHAP have access to a
portable library, pastoral counseling, and cell-study materials.
¶ 29 Moreover, a journal article relied upon by plaintiffs echoes the relevance of
varying attendant circumstances. The article explains that variables among housing
conditions, including the availability of reading material and frequency of visitation,
“might explain differing outcomes.”
¶ 30 Whether there is a substantial risk of harm depends significantly on the
penological purposes served, the procedural safeguards, the duration and length of
stay, and the relevant attendant circumstances to each restrictive housing
assignment. Thus, the fundamental distinctions and individual issues identified by
the trial court are material and far from collateral. Compare Faulkenbury, 345 N.C.
at 698, 483 S.E.2d at 431–32 (holding the trial court did not abuse its discretion in
certifying a class, where plaintiffs’ claim for the underpayment of benefits
predominated over individual, “collateral issues”), with Fisher, 369 N.C. at 215, 794
S.E.2d at 709 (concluding the trial court did not abuse its discretion in certifying a
class because “the same basic questions of fact and law will determine whether”
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plaintiffs can recover damages from defendant). Accordingly, the trial court did not
abuse its discretion in concluding that no common issue predominates over issues
affecting only individual class members because of the fundamental differences
across the housing classifications.
¶ 31 Plaintiffs alternatively contend the trial court erred because it “failed to
acknowledge that institutionalized plaintiffs may seek broad systemic relief when
faced with systemic risks of harm.” To support their contention, plaintiffs claim that
when “a class seeks an indivisible injunction benefitting all its members at once, there
is no reason to undertake a case-specific inquiry into whether class issues
predominate,” quoting Wal-Mart Stores, Inc., 564 U.S. at 362–63. As the trial court
correctly concluded, however, the Supreme Court of the United States was analyzing
a subsection of Rule 23 of the Federal Rules of Civil Procedure, Rule 23(b)(2), which
is not included in North Carolina’s Rule 23. Further, it is well established that this
Court has interpreted North Carolina’s Rule 23 to require plaintiffs seeking class
certification to establish the existence of a class, which requires plaintiffs to
demonstrate that each member has “an interest in either the same issue of law or of
fact, and that issue predominates over issues affecting only individual class
members.” Crow, 319 N.C. at 277, 354 S.E.2d at 462.
¶ 32 Plaintiffs have failed to establish that the claims of all potential class members
share a common issue capable of resolution with one stroke. Beroth Oil Co., 367 N.C.
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at 346, 757 S.E.2d at 476 (holding there was no error in the trial court’s denial of class
certification because although defendant’s “generalized actions may [have been]
common to all [potential class members’ properties], . . .” “liability [could] be
established only after extensive examination of the circumstances surrounding each
of the affected properties” (internal quotations and citation omitted)). We therefore
hold the trial court did not abuse its discretion in concluding plaintiffs failed to
demonstrate a common predominating issue among the purported class members.
¶ 33 While the trial court identified two additional bases for denying plaintiffs’
motion for class certification—inadequacy of plaintiffs as class representatives and
that litigation as a class is not a superior method of adjudication—we do not need to
reach those bases here. The record evidence firmly supports the trial court’s
conclusion that plaintiffs failed to establish a common predominating issue among
the purported class members. Since the trial court did not abuse its discretion in
determining plaintiffs failed to meet this initial requirement to class certification,
review of the additional bases is not needed.
¶ 34 A trial court possesses broad discretion in class certification. Honoring that
discretion is the “touchstone for appellate review” of class certification orders. See
Frost, 353 N.C. at 198, 540 S.E.2d at 331. We hold that the trial court did not abuse
its discretion in denying plaintiffs’ motion for class certification and affirm the trial
court’s order.
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AFFIRMED.
Justice EARLS, dissenting.
¶ 35 While a trial court has discretion to determine whether to certify a class, that
discretion is not completely unfettered. When the trial court erroneously requires
plaintiffs to prove their case on the merits in the guise of determining a common legal
issue, and where the trial court mischaracterizes the nature of the plaintiffs claims,
those legal errors cannot be endorsed in the name of fidelity to the trial court’s
discretion. See Beroth Oil Co. v. N.C. DOT, 367 N.C. 333, 342 (2014) (“In determining
the propriety of a class action, the question is not whether the plaintiff or plaintiffs
have stated a cause of action or will prevail on the merits, but rather whether the
requirements of Rule 23 [class certification] are met.” (quoting Eisen v. Carlisle &
Jacquelin, 417 U.S. 156, 178 (1974))); see also Blitz v. Agean, Inc., 197 N.C. App. 296,
312 (2009) (vacating a denial of class certification based on the trial court’s
“misapprehension of applicable law”) (cleaned up).
¶ 36 In 2015, Justice Kennedy echoed words Dostoyevsky wrote over 150 years ago:
“The degree of civilization in a society can be judged by entering its prisons.” Davis v.
Ayala, 576 U.S. 257, 290 (2015) (Kennedy, J., concurring) (quoting The Yale Book of
Quotations 210 (Fred R. Shapiro ed. 2006)). “There is truth to this in our own time.”
Ayala, 576 U.S. at 290. “Prisoners are shut away— out of sight, out of mind.” Id. at
288. For many people in prison, this detention includes the use of solitary
confinement. Plaintiffs in this case allege that in North Carolina, people in solitary
confinement are forced to live for twenty-two to twenty-four hours a day in cells no
bigger than a typical parking space, with little to no opportunity for meaningful
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Earls, J., dissenting
human contact or environmental stimulation. And it is this policy, as a whole, that
Rocky Dewalt, Robert Parham, Anthony McGee, and Shawn Bonnett (plaintiffs)
challenge, not only for themselves but for anyone who is or will be subjected to solitary
confinement.
¶ 37 Since at least 1890, the United States Supreme Court has noted “serious
objections” regarding the use of solitary confinement. In re Medley, 134 U.S. 160, 168
(1890). In In re Medley the Court noted that the adverse effects of solitary
confinement occurred “after even a short confinement.” Id; see Ruiz v. Texas, 137 S.
Ct. 1246 (2017) (mem.) (Breyer, J., dissenting) (citing In re Medley, 134 U.S. at 172).
More recently Justice Kennedy acknowledged that “[y]ears on end of near total
isolation exact a terrible price.” Ayala, 576 U.S. at 289 (Kennedy, J., concurring).
Social isolation and lack of environmental stimulation are the hallmarks of solitary
confinement. These practices can exacerbate pre-existing mental illnesses and cause
the “appearance of an acute mental illness in individuals who had previously been
free of any such illness.”1 See Stuart Grassian, Psychiatric Effects of Solitary
Confinement, 22 Wash. U. J.L. & Pol’y 325, 333 (2006) (stating common side effects
of solitary confinement include anxiety, panic, withdrawal, hallucinations, self-
mutilation, and suicidal thoughts and behaviors). Even more significantly, the effects
1This is especially concerning given people with mental illness are more likely to be
subjected to solitary confinement than those without a mental illness.
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of solitary confinement in many cases can be permanent. In North Carolina the effects
of solitary confinement are especially harrowing, with at least one study finding that
people who spent any time in solitary confinement in our state prisons “were
significantly more likely to die of all causes in the first year after release than those
who did not.” Statistics also demonstrate that African Americans and other people of
color are disproportionately represented among persons subjected to solitary
confinement.2
¶ 38 North Carolina still allows people to be placed in solitary confinement
indefinitely. Plaintiffs challenge this State’s solitary confinement policy, arguing that
the policy “viewed as a whole, impose[s] cruel or usual punishment forbidden by
Article I, Section 27 of the state Constitution.” They seek declaratory and injunctive
relief limiting the use of solitary confinement, such that it could only be used “as a
last resort, and for the shortest time possible.” Because thousands of people are
subjected to solitary confinement each day under the same statewide policy, there are
2 The Vera Institute reported that “while 35 percent of the white incarcerated
population had spent at least one night in restrictive housing during the [year prior to the
study],” the same was true for 47 percent of African American individuals. Jessa Wilcox, Léon
Digard, & Elena Vanko, Vera Inst. Of Just., The Safe Alternatives to Segregation Initiative:
Findings and Recommendations for the North Carolina Department of Public Safety, 22-23
(Dec. 2016). Further, people identifying as African American were overrepresented in all but
one type of restrictive housing. Id. Latino men are also disproportionately impacted by
solitary confinement, as they make up 16.9% of the male restrictive housing population
across all evaluated jurisdictions, despite being only 15.4% of the total male custodial
population. The Corr. Leaders Ass’n & The Arthur Liman Ctr. for Pub. Int. L. at Yale L. Sch.
Time-In-Cell 2019: A Snapshot of Restrictive Housing based on a Nationwide Survey of U.S.
Prison Systems, 26 (Sept. 2020).
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thousands of potential class members, all of whom face nearly identical conditions.
Class members challenge the same statewide practices, rely on the same legal theory,
and seek uniform relief through changes to statewide policy. As plaintiffs’ brief makes
clear “no one is asking for an individually tailored remedy based on unique personal
circumstances.”
¶ 39 The trial court mischaracterized plaintiffs’ argument as “depend[ing] greatly
on the individual class member’s experiences in the various restrictive housing
settings.” In affirming the trial court’s order, the majority goes to great lengths to
find irrelevant differences that do not have any legal significance. Instead of
addressing plaintiffs’ argument, which requires that this State’s solitary confinement
policy be “taken as a whole,” the majority engages in an analysis of the policy’s
administrative classifications for solitary confinement, the varied average lengths of
time each person is kept in solitary confinement, and the varied reasons a person may
be subjected to such confinement, among other things. But none of these factors are
relevant to a class certification motion in a case that challenges a statewide policy “as
a whole.” See Brown v. Plata, 563 U.S. 493, 505 n.3 (2011) (addressing a class action
challenge to a policy “taken as a whole”); see also Parsons v. Ryan, 754 F.3d 657, 678
(9th Cir. 2014) (“That inquiry does not require us to determine the effect of those
policies and practices upon any individual class member (or class members) or to
undertake any other kind of individualized determination.”). Because North
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Carolina’s solitary confinement policy allows for indefinite use of solitary confinement
across all classifications, these distinctions cannot, as a matter of law, weigh against
plaintiffs. See Pride v. Correa, 719 F. 3d 1130, 1137 (9th Cir. 2013) (stating that
individual claims for relief “are discrete from the claims for systemic reform
addressed in Plata.”).
¶ 40 It matters not how well supported by the evidence the trial court’s factual
findings about the various classifications of confinement may be. “What all members
of the putative class and subclass have in common is their alleged exposure, as a
result of specified statewide . . . policies and practices that govern the overall
conditions of . . . confinement, to a substantial risk of serious future harm . . .” Parsons
v. Ryan, 754 F. 3d. 657, 678 (2014). Thus, the legal significance of this detention policy
for plaintiffs’ class certification motion is that plaintiffs must show that a large
number of individuals are subject to the same treatment, namely, twenty-two to
twenty-four hours of isolation inside a cell for an indefinite amount of time;
accordingly, as a legal matter, those individuals can request the same type of relief.3
3 The majority’s analysis is like saying that in a suit challenging the constitutionality
of a reduction in public employees’ disability benefits, a class action cannot be maintained
because different class members receive differing payments and thus would recover different
amounts. It may be true that disability benefits and recovery amounts vary, but that’s not
the point. In this example, as a class, this group challenges the constitutionality of their
reduction in disability benefits, and thus class certification is appropriate for class-wide
relief. See Faulkenbury v. Tchrs’ & State Emps’ Ret. Sys., 345 N.C. 683, 698 (1997) (“The
predominate issue is how much the parties’ retirement benefits were reduced by an
unconstitutional change in the law. This issue defines the class.”).
.
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See Braggs v. Dunn, 317 F.R.D. 634, 667 (M.D. Ala. 2016) (“The Supreme Court has
approved of system-wide relief in prison cases involving systemwide violation[s]
resulting from systemwide deficiencies” (quoting Plata, 563 U.S. at 532 (cleaned up))).
The majority also determined that because there are differences in the frequency of
visitation, the nature of recreation, and the quantity and quality of human
interaction, the plaintiffs could not establish a predominating issue. Yet plaintiffs’
argument is not that there aren’t differences among the different housing
assignments. Those distinctions are irrelevant. See Parsons, 754 F. 3d 657, 678 (9th
Cir. 2014). Instead, they argue that the actual conditions of confinement in every
instance, whatever the housing arrangements, or visitation options, which dictate
that a person will spend twenty-two to twenty-four hours a day in a cell, for an
indefinite time, violate Article I, Section 27 of the North Carolina Constitution. See
id. at 678.
¶ 41 Plaintiffs’ argument is similar to the contentions advanced in Plata v. Brown.
In Plata the class was composed of state prisoners who suffered an alleged
constitutional violation based on “systemwide deficiencies” in prison “medical and
mental health care that, taken as a whole, subject[ed] sick and mentally ill prisoners
in California to ‘substantial risk of serious harm’ and cause[d] the delivery of care in
the prisons to fall below the evolving standards of decency that mark the progress of
a maturing society.” 563 U.S. at 505 n.3 (quoting Farmer v. Brennan, 511 U.S. 825,
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834 (1994)). In Plata the Court further stated that because the plaintiffs did “not base
their case on deficiencies in care provided on any one occasion, [there was] no occasion
to consider . . . particular deficienc[ies] in [the] medical care complained of.” Id.Similarly, because plaintiffs in this case do not allege a constitutional violation based
on particular deficiencies but rather make allegations related to North Carolina’s
policy “as a whole,” the majority’s analysis of differences in the ways in which
different types of restrictive housing implement the policy is misplaced. Specifically,
the majority’s recitation of variations in implementation of the policy’s administrative
classifications for solitary confinement, the varied average length of time a person is
kept in solitary confinement, the varied reasons a person may be subjected to such
confinement, frequency of visitation, the nature of recreation and the quantity and
quality of human interaction is irrelevant to the determination before us now. See id.;
see also Parsons, 754 F. 3d at 678.
¶ 42 Furthermore, the trial court improperly assessed the merits of plaintiffs’
claims when it found there was not enough evidence to show the “Department’s
[solitary confinement] policies and practices actually caused the complained of
harm[.]” Addressing the merits of the plaintiffs’ case not only bypasses the process of
discovery and trial but is also legal error. In North Carolina, Rule 23 does not ask
whether the plaintiff will prevail on the merits and any inquiry into the merits of a
case should be limited to the issue of class certification. Beroth Oil, 367 N.C. at 342,
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342 n. 5 At this stage plaintiffs are only required to show that North Carolina’s
statewide solitary confinement policy and practice exposes class members to a
common risk of harm, not whether this exposure occurred or rises to the level of a
constitutional violation. See Beroth Oil, 367 N.C. 333 at 342. The evidence submitted
by the plaintiffs meets this burden because at this stage all they seek to establish is
that a group of people within North Carolina prisons may be exposed to a risk of harm
because they spend twenty-two to twenty-four hours a day inside a cell.
¶ 43 In making its determination, the trial court considered two of the four reports
submitted by the plaintiffs. One report detailed the increased risk during community
reentry following the use of solitary confinement. The trial court and majority
conclude alike that because the study involved observational data and correlational
analysis, it could not “provide concrete support” for plaintiffs’ claim that solitary
confinement increases the risk of post-release mortality. However, this does not
address class certification under Rule 23, see Beroth Oil, 367 N.C. at 342 n. 5, and
instead the trial court and majority’s reasoning addresses the central question in this
case, namely whether defendants have in fact imposed a class wide policy that causes
a substantial risk of serious harm. Yet at this point in the litigation, there is only one
discreet question– whether class certification is met under Rule 23. See id.
¶ 44 Regarding the second study, the Vera Report, the majority recounts the trial
court’s findings stating the report was “insufficient to connect DPS’s practices to the
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alleged risk of harm.” In doing so, the majority notes that the Vera Report
“commended DPS on its previous reform efforts, suggested that DPS continue
implementation of both current and future reform,” and noted that DPS’s restrictive
housing population had decreased by 10% one month after the study concluded.”
However, this line of reasoning speaks to the merits of the plaintiffs alleged
constitutional violation and is more properly addressed at a later stage in the
litigation. See Beroth Oil, 367 N.C. at 342 n. 5. Thus, because at this stage plaintiffs
only seek to establish a class of persons subjected to solitary confinement for twenty-
two to twenty-four hours a day, their burden has been met.
¶ 45 Furthermore, although the majority does not reach this issue, the trial court
found that the named representatives would not fairly and adequately represent the
interests of all class members because (1) the plaintiffs do not represent the “wide
spectrum of inmates potentially encompassed in the class,” and (2) “their own actions
may compromise the viability of their own claims.” This conclusion was based upon
the named plaintiffs being “placed in restrictive housing early in their sentence” and
“being repeatedly assigned to restrictive housing or having had their assignment
extended” due to “repeated disciplinary infractions.” However, the class is not based
on the individual actions or circumstances of each plaintiff, instead it is based on a
solitary confinement policy that subjects people to twenty-two to twenty-four hours a
day in a cell, for an unlimited number of days. Thus, plaintiffs being placed in solitary
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confinement early in their sentences, or the reason they were placed there or had
their time there extended has no legal relevance.
¶ 46 The trial court also found that a class action was not superior to other available
methods of adjudication because litigation would “devolve into a series of mini trials”
about “each of the challenged restrictive housing assignments” and “the myriad of
other relevant considerations and defenses that undoubtedly would not apply
uniformly to all potential class members.” Here again the trial court mischaracterized
plaintiffs’ arguments. Because plaintiffs challenge the policy as a whole there is no
occasion to consider the individual circumstances of each plaintiff. See Plata v.
Brown, 563 U.S. 493, 505 n.3 (2011). Instead, what is important is that the class is
composed of people who spend twenty-two to twenty-four hours a day in a cell in social
isolation.
¶ 47 Lastly, in upholding the trial court’s order, the majority repeatedly states that
a trial court has broad discretion to decide whether to certify a class. Although it is
true that under this Court’s precedent in Crow v. Citicorp Acceptance Co., Inc., 319
N.C. 274 (1987), a “trial court has broad discretion,” this discretion relates to
balancing “[t]he usefulness of the class action device. . . against inefficiency or other
drawbacks.” Id. at 284. Assessing the extent to which evidence proffered on the class
certification motion proves that plaintiffs have suffered a violation of their
constitutional rights is a legal error and does nothing to contemplate the required
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balance. Instead, it evidences hostility to their claim on the merits, which is not the
appropriate assessment at this point in the litigation. In other words, it is an abuse
of discretion for the trial court to deny class certification on the grounds that the
plaintiffs should lose on the merits. See Beroth Oil, 367 N.C. at 342.
¶ 48 The class here is not based on the individual circumstances of each plaintiff,
instead it is based on a solitary confinement policy that subjects people to twenty-two
to twenty-four hours a day in a cell, for an unlimited number of days. Like in
Faulkenbury, 345 N.C. at 698, plaintiffs all seek the same type of relief, namely an
injunction and declaratory judgment that the state constitutional guarantees mean
that solitary confinement be used only as a last resort and for the shortest time
necessary. See id. (“Each of the parties had a claim based on what he or she contends
is underpayment of retirement benefits. This claim predominates over issues
affecting only one individual class member. This establishes a class.”). Likewise, class
certification is not based on an assessment of the plaintiffs’ allegations on the merits.
See Beroth Oil, 367 N.C. at 342 n. 5. Thus, whether plaintiffs provided correlational
or observational evidence cannot be relevant to this inquiry because all that is
necessary to establish the grounds for class certification is that there is a group of
people alleged to be exposed to the same treatment of little to no social interaction or
environmental stimulation for twenty-two to twenty-four hours a day inside a cell.
¶ 49 “[C]onsideration of these issues is needed” and “[t]here are indications of a new
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and growing awareness . . . of solitary confinement.” Ayala, 576 U.S. at 289 (Kennedy,
J., concurring). Even years ago, it was “evident that some changes must be made in
the system.” In re Medley, 134 U.S. 160, 168 (1890). As a result of the “terrible human
toll” resulting from solitary confinement, Ruiz 137 S. Ct. at 1247 (Breyer J.
dissenting), it has been suggested that if a case presents an issue of solitary
confinement, “the judiciary may be required, within its proper jurisdiction and
authority, to determine whether workable alternative systems for long term
confinement exist, and, if so, whether a correctional system should be required to
adopt them.” Ayala, 576 U.S. at 290 (Kennedy, J., concurring). Today this Court has
the responsibility to apply the criteria for class certification to the claim that is
actually being brought by plaintiffs, not to the claim as chopped up and reconstituted
by defendants and the majority.
¶ 50 Plaintiffs are asking this Court to recognize that, as a group, they have state
constitutional rights that are implicated by North Carolina’s solitary confinement
practices. Those rights are equally violated by the whole policy, without regard to
whether detainees are in RHAP, RHDP, HCON, or some other acronym for the same
thing–solitary confinement in a single cell for twenty-two to twenty-four hours a day
for an indefinite number of days. The majority essentially holds that because it does
not agree with the constitutional claims on the merits, class certification is not
appropriate. But our system of laws has long recognized the importance of the class
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action vehicle for the resolution of disputes in which large numbers of individuals
share a common claim and would all benefit from a common resolution.4
¶ 51 Because plaintiffs challenge a widespread state policy and seek to establish a
class of individuals who are subject to the same policy allowing for twenty-two to
twenty- four hours inside a prison cell for an indefinite period, I would hold that the
trial court based its ruling on a misapprehension of plaintiffs’ claim and a mistake of
law. I would reverse the trial court’s order denying class certification, and remand
the matter for further proceedings applying the correct understanding of class
certification in these circumstances. Accordingly, I respectfully dissent.
Justice HUDSON joins in this dissenting opinion.
4The English bill of peace, which originated in the middle ages to facilitate the adjudication of
disputes involving common questions and multiple parties in a single action, was the basis for North
Carolina’s early class action decisions in the late 1800s. See Chambers v. Moses H. Cone Mem'l Hosp.,
374 N.C. 436, 440 (2020) (citing Bronson v. Wilmington N.C. Life Ins. Co., 85 N.C. 411, 414 (1881)
(acknowledging the class action mechanism as a feature of civil procedure)).