J.B. v. Wood (Lead Case)BRIEF/MEMORANDUM in Opposition to Plaintiffs' Motion for Class CertificationM.D. Ala.April 3, 20071 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION J.B., a minor child, by and through his ) next friend, ADDIE WARD, on behalf of ) himself and all other similarly situated; ) ) Case No: 2:06-CV-755-CSC Plaintiff, ) CLASS ACTION ) vs. ) ) WALTER WOOD, in his individual ) capacity, ) ) Defendant. ) BRIEF IN OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION The Defendant opposes the certification of a class of plaintiffs in this case. The Plaintiffs have not provided the Court with sufficient evidence to satisfy the rigorous analysis requirement of Fed.R.Civ.P. 23. See, General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364 (U.S.,1982) (stating that a “class action, may only be certified if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied”). The Defendant opposes class certification because the Plaintiffs failed to meet their burden of proof to supply the Court with sufficient information to rigorously analyze any of the requirements of commonality, typicality, or adequacy of representation. Likewise, the Plaintiffs failed to supply information to satisfy their burden of proof regarding predominance, and superiority. In this brief the Defendant will discuss the stringent requirements of Rule 23 and the inadequacies of the Plaintiffs' case in support of certification. Case 2:06-cv-00755-MHT-CSC Document 27 Filed 04/03/2007 Page 1 of 25 2 PROCEDURAL BACKGROUND Plaintiffs JB by and through Addie Ward filed this lawsuit in the United States District Court for the Middle District of Alabama on August 23, 2006. They now seek to be certified to represent a class. JB seeks damages allegedly due the class for violations of a state statute which they allege required the Defendant J. Walter Wood, Jr. to place JB in DYS within 7 days of his commitment, and for alleged violation of JB’s constitutional right to rehabilitative treatment. On or about March 5, 2007, the Plaintiffs filed a Motion for Class Certification and a supporting Brief. The case is now before this Court on the Plaintiffs' motion for class certification. The Plaintiffs seek certification of a class of individuals pursuant to Fed.R.Civ.P. 23(b)(3). UNDISPUTED FACTS JB is a 17 year old Caucasian juvenile delinquent who seeks to be certified as a class representative. JB is currently committed to the custody of the Department of Youth Services and has been committed previously. He was first committed to state custody in May 2005 for burglary in the 1 degree. (Exhibit 1). He went to a program inst Mobile called “The Bridge”, from which he ran away. (Exhibit 2 - JB depo. p. 7, lines 4- 9). He was subsequently sent to DYS Autauga campus. He was again committed to state custody for possession of drugs in April 2006. (Exhibit 2 - JB depo. p. 9, lines 9-7; Exhibit 3). He is currently again in state custody for theft of property and possession of a pistol. (Exhibit 2 - JB depo. p. 7, lines 20-22; Exhibit 4). JB has a pending claim against him for conspiracy to commit robbery and for which he asserts a 5 Amendment rightth against self incrimination. (Exhibit 2 - JB depo. p. 10, line 6 - p. 11, line 18). The Case 2:06-cv-00755-MHT-CSC Document 27 Filed 04/03/2007 Page 2 of 25 3 pending charge for conspiracy to commit robbery, the charge for theft of property, and the charge for possession of a pistol all occurred during the pendency of this lawsuit. J. B. testified that he has been a frequent user of marijuana since he was nine years old. (Exhibit 2 - JB depo. P. 15, line 22 - p. 17, line 19). The only thing that may have convinced him to stop using drugs is having been locked up. (Exhibit 2 - JB depo. p. 19, line 8- p. 21, line 1). JB is apparently not a highly motivated individual. Throughout his DYS file are references to his unwillingness to put forth a full effort in his undertakings. (Exhibit 5). He is affiliated with gangs and considers himself “Crip to the heart” or “Crip for life.” (Exhibit 6; Exhibit 2 - JB depo. p. 22, line1-6; Exhibit 7 - Ward depo. p. 28, lines 3-9). JB admitted to DYS staff that he used hallucinogenic drugs including mushrooms and pills (Exhibit 8), but now denies using hallucinogens (Exhibit 2 - JB depo. p. 25, lines 11-18). JB has little understanding of what this lawsuit is about or what it means to be a class representative. (Exhibit 2 - JB depo. p. 28, lines 6- p. 29, line 2; Exhibit 2 - JB depo. p. 31, lines 11-20). He has communicated with putative class counsel approximately three times. (Exhibit 2 - JB depo. p. 30, line 5 - p. 31, line 2). He doesn’t know his lawyers’ phone numbers or where to find them. (Exhibit 2 - JB depo. p. 31, lines 3-10). JB plans to get a job in construction when he gets out of state custody. (Exhibit 2 - JB depo. p. 34, lines 7-19). Plaintiff Addie Ward is a 78 year old retiree. She is JB’s great grandmother and JB has lived with her, off and on, since approximately 1996. (Exhibit 7 - Ward depo. p. 9, lines 10-11; p. 12, lines 10-13). She does not have custody of JB ( Exhibit 7 - Ward depo. P. 44, line 18- p. 46, line 11). She currently lives alone and her sources of income Case 2:06-cv-00755-MHT-CSC Document 27 Filed 04/03/2007 Page 3 of 25 Though the undersigned offered to accommodate her she changed her appointment and went1 forward with the deposition. 4 include only state retirement and social security. (Exhibit 7 - Ward depo. p. 41, lines17- 23). On the day of her deposition her attorney originally stated that her deposition could only last one hour because she had an appointment for treatment at the cancer clinic. 1 Addie Ward’s grandson–Kenneth Turner–is JB’s father. Kenneth Turner has legal custody of JB (Exhibit 7 - Ward depo. p. 35, lines 7-12; 44, line 18 - p. 46 line 10). Turner has been in and out of jail including for DUI. JB’s mother is in prison in Louisiana. (Exhibit 7 - Ward depo. p. 46, line17- p. 47, line 23). The Mission of DYS is to enhance public safety by holding juvenile offenders accountable through the use of institutional, educational, and community services that balance the rights and needs of victims, communities, courts, and offenders. Essentially, the juvenile courts in the 67 Alabama counties commit delinquent youth, and in certain cases children in need of supervision (CHINS) to DYS custody, see Ala.. Code 12-15-71 (c), and (e), 1975, as amended, and DYS staffs each juvenile according to his or her characteristics.(Exhibit 9). When a juvenile is committed to DYS custody, the Screening and Placement Committee reviews the juvenile’s characteristics and determines where the juvenile would most appropriately be staffed. The Screening and Placement Committee currently has available for placement 6 operated DYS facilities and 26 contract facilities. The DYS operated facilities for staffing are: Autauga Campus Chalkville Campus, Mobile Group Home, Case 2:06-cv-00755-MHT-CSC Document 27 Filed 04/03/2007 Page 4 of 25 5 Mt. Meigs Campus, Thomasville Campus, Vacca Campus. The contract facilities are: Alabama Youth Homes, Inc., (locations in Wetumpka, Westover, and Oneonta) Big Brothers Home Away From Home, J & M Manor, Laurel Oaks Behavioral Health Center, Lee County Youth Development Center, (S.T.A.R.S. program and BEAMS program) Southern Oaks Center, The Bridge, (GEMS Program), The Bridge, (REACH Program), The Bridge, (STEPS Program), The Bridge, (Camp Cobia), The Bridge, (About Face), The Bridge, (Camp 180), Three Springs, (Madison), Three Springs (Tuskegee), Three Springs, (Choices, Male), West Alabama Youth Services, (W.A.Y.S.), West Alabama Youth Services, (Chances) New Life Center for Change, Restoration Resources, Inc., Group Homes for Children, Troy University, Troy Group Home, Montgomery Group Home, University of North Alabama, North Alabama Group Home. The selection of the above referenced placement options is based on a cycle of approximately three years. Estimated staffing needs must be projected, proposals must be Case 2:06-cv-00755-MHT-CSC Document 27 Filed 04/03/2007 Page 5 of 25 The Defendant denies the Plaintiffs are entitled to damages and denies a cause of action exists2 under either claim. However, because this is a brief on class certification the Defendant will not address the merits of the claims herein. 6 prepared, and contracts solicited. DYS adheres to the standards of the American Correctional Association with regard to staffing ratios, and facility standards. Obviously, with 29 current placement options, staffing is a complex undertaking. A complicating factor is that the various types of commitments (discussed below) occasionally experience unpredictable spikes from the various courts in the 67 Alabama counties. Those spikes tend to be sporadic and unpredictable. Capacity at each placement option is limited based on facility capacity and ACA standards. When a particular facility is full, and no alternate appropriate placement is available, placement is delayed until a bed becomes available pursuant to the provisions of § 12-15-71(j), Code of Alabama, 1975, as amended. (See Applicable Law, below). The Plaintiffs claim they are entitled to money damages for the violation of the above referenced state statutes. Alternatively, the Plaintiffs claim they are entitled to money damages for violation of the Plaintiff’s alleged constitutional right to rehabilitative treatment. 2 “RIGHT TO TREATMENT.” When dealing with treatment of juvenile delinquents in the custody of DYS, it is important to distinguish between the various kinds of “treatment,” and the semantic distinctions involved in the various usages of the terms involved. The terms rehabilitation, treatment, mental health treatment, treatment of mental illness, and rehabilitative treatment are often used interchangeably in casual discussion, however the law regarding these issues is distinct and requires precise understanding of the Case 2:06-cv-00755-MHT-CSC Document 27 Filed 04/03/2007 Page 6 of 25 7 subject under scrutiny. In addition, there are cases discussing “treatment as a juvenile,” which have nothing to do with the issues in this case because they deal mostly with transfer of defendants from the juvenile system to the adult system. The Defendant in this case will focus on “treatment” in conformity with the provisions of the Eighth Amendment. Essentially, the Defendants submit that under the law in this circuit, there is no constitutional right to treatment and the constitutional standard for treatment is found under the Cruel and Unusual clause of the Eighth Amendment. See Morales v. Turman, 562 F.2d 993 (11 Cir.th 1977). Plaintiff and putative class representative JB is not an individual with a serious mental illness and he is not seeking to be a representative of a class of seriously mentally ill, or emotionally disturbed, juveniles in DYS custody. He is a delinquent adjudicated for burglary, drug offenses, theft of property and possession of a firearm. Yet he is seeking to be a representative of EVERY juvenile committed to DYS custody who has been required to wait in detention for placement in a DYS facility. As discussed herein, the class is overly broad and includes subclasses with claims that differ significantly in substance. For example, a juvenile delinquent with a history of criminal conduct such as JB has a significantly different substantive claim to “treatment” from a seriously mentally ill or emotionally disturbed juvenile who is ungovernable. APPLICABLE LAW § 12-15-71(j), Code of Alabama 1975, as amended, states: whenever a court commits a child to a state or local agency or orders a state or local agency to provide services or treatment for a child, that agency shall accept the child for commitment, order services, or treatment within seven days of the court’s order. However, if compliance with the court’s order within seven days would place an Case 2:06-cv-00755-MHT-CSC Document 27 Filed 04/03/2007 Page 7 of 25 In Bonner v. Prichard, 661 F.2d 1206 (1981), the newly created Eleventh Circuit adopted as3 binding precedent Fifth Circuit decisions rendered prior to October 1981. 8 agency in violation of either a state statute or standard, then compliance is not required. (Emphasis added). § 12-15-61( c ), Code of Alabama 1975, as amended, states that “the Department of Youth Services shall accept all children committed to it within seven days of notice of disposition.” The constitutional right to treatment on which this case is based has not been firmly established. See, e.g. Morales v. Turman, 562 F.2d 993, 998 (5th Cir. 1977) (stating that the3 "right to treatment is doubtful" and that "the eighth amendment prohibition of cruel and unusual punishment as the constitutional standard for the conditions of imprisonment can adequately remedy the conditions in [juvenile] institutions"). Generally, there is therefore no constitutional right to treatment of juvenile delinquents in DYS custody similar to the right to treatment of mentally ill or mentally retarded juveniles. Rule 23, Fed.R.Civ.P., governs the certification of class actions. The Court must first perform a rigorous analysis of the four prerequisites before certifying a class action. Rule 23(a) states: Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. The prerequisites stated in Rule 23(a) are commonly referred to as numerosity, commonality, typicality, and adequate representation. The Plaintiffs have the burden of proof with regard to each issue. See, Valley Drug Co. v. Geneva Pharmaceuticals, Inc., 350 F.3d Case 2:06-cv-00755-MHT-CSC Document 27 Filed 04/03/2007 Page 8 of 25 The plaintiffs in this case only seek to have a class certified pursuant to Rule 23(b)(3). 4 9 1181, 1192 (11 Cir., 2003). Each is discussed below in the section titled Argument.th If the plaintiffs satisfy the Court as to the prerequisites of Rule 23(a), only then does the Court go on to determine whether the action can be maintained under the provisions of Rule 23(b)(1)(A), Rule 23(b)(1)(B), Rule 23(b)(2), or Rule 23(b)(3). 4 Rule 23(b) states as follows: (b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition: . . . (3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; ©) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action. ARGUMENT Numerosity. The numerosity requirement hinges on whether joinder of all members is impracticable. While there is no minimum number necessary in all cases to meet the numerosity requirement, the Plaintiffs must submit evidence of factors regarding each subclass sufficient to satisfy the Court that the impracticability threshold has been met. See, e.g. Rule 23( c)((4); Johnson v. American Credit Co. of Georgia, 581 F.2d 526 (5th Case 2:06-cv-00755-MHT-CSC Document 27 Filed 04/03/2007 Page 9 of 25 The Plaintiff characterizes the claim as though the issue were placement within seven days of5 commitment, while the statute under the Plaintiff wants to travel requires placement “within seven days of notice of disposition.” It is also the kind of conflict that destroys commonality. (See below).6 10 Cir.1978); LaBauve v. Olin Corp., 231 F.R.D. 632 (S.D.Ala.2005); Pickett v. IBP, Inc., 197 F.R.D. 510 (M.D.Ala.2000); Woodward v. Nor-Am Chem. Co.). In this case, while it is true that the entire group of juveniles committed to state custody and not placed within seven days exceeds 600 people, it does not necessarily follow that each subclass satisfies the Numerosity requirement. The Plaintiffs have glossed over the numerosity requirement, assuming that the number of juveniles when lumped together in one group satisfies the Numerosity requirement, without submitting one whit of evidence that they can be so treated. The purported class in this case includes no subclasses but delineates one lead plaintiff as representative of one class comprising all persons committed to state custody who remained in detention for seven days or longer. A closer examination however reveals that5 the committed juveniles include several subclasses. For example, the alleged class includes individuals who are males and females. The Prison Litigation Reform Act applies to certain claims and not to others. This issue is particularly troublesome with regard to JB because he filed the first complaint in this lawsuit while still in DYS custody. His having re-filed the complaint after being released from DYS custody may not solve the problem–particularly in light of the fact that his two cases have now been consolidated. Moreover, during the pendency of the case, JB was again placed in state custody. This legal complication is most likely unique to his case and is an example of the type of conflict that requires subclasses. 6 Case 2:06-cv-00755-MHT-CSC Document 27 Filed 04/03/2007 Page 10 of 25 The DYS Screening and Placement committee simplifies classifications and classifies all7 students as either (a) SJO, (b) Regular Commitment, (c) Sex Offender, (d) Community/Residential, (e) Pure Hit, (f) Special Needs, or (g) any combination of two or more of the above. Screening and Placement’s classification is based on the type of commitment order, risk assessment scores, reports from probation officers, psychologists and others familiar with the child. (Exhibit 9). 11 The Plaintiffs made no attempt to delineate between juveniles of various groups staffed for the various facilities described above. SJOs and juveniles committed for alcohol abuse, for example, are purported to be thrown into one pot. However, such differences present serious intraclass conflicts which require subclasses to be defined. The Plaintiffs have offered no definitions of subsidiary classes they might present. If they had done so, they would have been required to submit that each subclass meets the Numerosity requirement. They have supplied the court with no information whatsoever. In addition to the differences between juveniles staffed at various facilities, there are several categories of commitments. The Plaintiffs have made no attempt to delineate between juveniles of various types of commitments. The following paragraphs, derived from the attached affidavit of Pat Pendergast, will discuss these categories of commitments. 7 The first category is known as HIT (high intensity treatment). HIT commitments are generally not committed to DYS custody but are adjudicated and placed on probation, with a condition of probation being that they complete a HIT program. Obvious differences exist between juveniles committed to state custody and a juvenile on probation who must complete a HIT program or be subsequently committed to DYS custody. The defense that HIT juveniles are not in DYS custody is a defense to the claims not applicable to others in the purported class. A second category is known as SJO (serious juvenile offenders). Pursuant to the Case 2:06-cv-00755-MHT-CSC Document 27 Filed 04/03/2007 Page 11 of 25 12 provisions of § 12-15-71.1, Code of Alabama 1975, as amended, serious juvenile offenders are committed for serious crimes and are required to be incarcerated for a minimum period of one year. Their claim of a need for placement within the shortest period of time is therefore different from other groups and unique in character, and their claim to a higher priority with regard to the limited resources of the agency–compared to the claims of other groups–is more tentative. Likewise, their claim to monetary damages–as compared to the claim of other groups–is different in character. A third category is dependent children who are also adjudicated delinquent. Pursuant to § 12-15-71, Code of Alabama 1975, as amended, such children may be placed in residential facilities but they have unique characteristics that separate them from generic delinquents and from other groups. A fourth category is known as CHINS (children in need of supervision). Pursuant to the provisions of § 12-15-71, Code of Alabama 1975, as amended, a CHINS must be treated different from delinquents. However, only if a CHINS is also delinquent, he/she may be placed in a facility with delinquent children, and only if the court also finds the child is not amenable to treatment or rehabilitation under a prior disposition or if the child is adjudicated a CHINS for a second time. A fifth unique category is status offenders under a valid court order. Such status offenders include truants, children committed for contempt of court, violation of probation (VOP), possession of alcohol by a minor, and children under 16 committed for traffic offenses. This group may overlap with, but is distinct from, CHINS. They are obviously distinct from, and have claims different in character from, for example, delinquent children or SJOs. Case 2:06-cv-00755-MHT-CSC Document 27 Filed 04/03/2007 Page 12 of 25 13 A sixth category is delinquent children. A delinquent child is a child committed for an act designated a violation, misdemeanor, or felony offense under the law of Alabama or another state if the act occurred in another state or under federal law or a violation of a municipal ordinance except violations of municipal curfew ordinances. A seventh category is determinate sentence commitments. The concept of determinate sentence commitments was judicially created in Ex parte R.E.C., 678 So.2d 1041 (Ala. 1995). A juvenile judge may require a juvenile to stay in custody for a specific length of time if the commitment order cites specific findings of fact and a reasoned analysis as to how the determinate period is calculated to benefit the juvenile or to further his or her rehabilitation; and provided, further, that the judge plainly states his/her intent to incorporate its order into DYS's service plan. An eighth category is criminal sex offenders. Pursuant to the Community Notification Act, § 12-20-20, et seq., Code of Alabama, 1975, as amended, juvenile criminal sex offenders are juveniles who are adjudicated for any of the following offenses: a. Rape in the first or second degree, as proscribed by Section 13A-6-61 or 13A-6-62; provided that a sentencing court may exempt from this article a juvenile or youthful offender criminal sex offender for a criminal sex offense as defined in Section 13A-6-62(a)(1). b. Sodomy in the first or second degree, as proscribed by Section 13A-6-63 or 13A-6-64. c. Sexual torture, as proscribed by Section 13A-6-65.1. d. Sexual abuse in the first or second degree as proscribed by Section 13A- 6-66 or 13A-6-67. e. Enticing a child to enter a vehicle, room, house, office, or other place for immoral purposes, as proscribed by Section 13A-6-69. Case 2:06-cv-00755-MHT-CSC Document 27 Filed 04/03/2007 Page 13 of 25 Incest is included herein merely because the statute lists it. By definition, a juvenile in DYS8 custody cannot be an adult and therefore cannot be a juvenile sex offender based on conviction of incest. 14 f. Promoting prostitution in the first or second degree, as proscribed by Section 13A-12-111 or 13A-12-112. g. Violation of the Alabama Child Pornography Act, as proscribed by Section 13A-12-191, 13A-12-192, 13A-12-196, or 13A-12-197. h. Kidnaping of a minor, except by a parent, in the first or second degree, as proscribed by Section 13A-6-43 or 13A-6-44. I. Incest, as proscribed by Section 13A-13-3, when the offender is an adult and the victim is a minor.8 j. Soliciting a child by computer for the purposes of committing a sexual act and transmitting obscene material to a child by computer, as proscribed by Sections 13A-6-110 and 13A-6-111. k. Any solicitation, attempt, or conspiracy to commit any of the offenses listed in paragraphs a. to j., inclusive. --Any crime committed in any state or a federal, military, Indian, or a foreign country jurisdiction which, if it had been committed in this state under the current provisions of law, would constitute an offense listed in paragraphs a. to k., inclusive. --The foregoing notwithstanding, any crime committed in any jurisdiction which, irrespective of the specific description or statutory elements thereof, is in any way characterized or known as rape, sodomy, sexual assault, sexual battery, sexual abuse, sexual torture, solicitation of a child, enticing or luring a child, child pornography, lewd and lascivious conduct, taking indecent liberties with a child, or molestation of a child. All juvenile criminal sex offenders must receive a risk assessment prior to release to the public. DYS, in cooperation with the University of Alabama and Auburn University, has developed the Accountability Based Sex Offender Program (known as ABSOP), for holding juvenile criminal sex offenders accountable and providing treatment and rehabilitation of Case 2:06-cv-00755-MHT-CSC Document 27 Filed 04/03/2007 Page 14 of 25 15 criminal juvenile sex offenders. The ABSOP program is located at Mt. Meigs campus. Approximately 50% of the physical bed space at Mt. Meigs is occupied by the ABSOP program. Obviously this group’s claim on the limited resources of the agency is different from the claims of other groups. A ninth category of juvenile commitments are “Multiple needs” children. Multi- needs children include children at imminent risk of out-of-home placement or a placement in a more restrictive environment as a result of the conditions of emotional disturbance, behavior disorder, mental retardation, mental illness, dependency, chemical dependency, educational deficit, lack of supervision, delinquency, or physical illness or disability, or any combination thereof, and whose needs require the services of two or more of the following entities: DYS, public school system (services for exceptional needs), Department of Human Resources, Department of Public Health, juvenile court probation services, or Department of Mental Health and Mental Retardation. These children present the various juvenile courts with perhaps the most challenging set of placement decisions. Each of the above categories are distinct subclasses who present serious intraclass conflicts which require subclasses to be defined. These groups of juveniles compete for limited state resources with regard to placement in the various facilities. The groups and subgroups have different and competing claims on limited state resources. Yet the Plaintiffs have offered no definitions of subsidiary classes they might present. Furthermore, in this case there is no avoiding multiplicity of actions. The real relief sought by the putative members of the class--money--can only be obtained in individual actions following inquiries into the individual situations of the juveniles and the facilities to which they were staffed. Every class member will necessarily have to submit evidence, and Case 2:06-cv-00755-MHT-CSC Document 27 Filed 04/03/2007 Page 15 of 25 The alleged theory has four components including: (1) that the plaintiff was not placed within9 seven days of commitment to DYS, (2) the plaintiff was not placed within a reasonable time subsequent to commitment, (3) state law requires the placement within seven days of commitment (sic.), and (4) the unreasonable delay in placement of each committed youth is unconstitutional. (Exhibit 10 - Plaintiff’s Brief in Support of Motion for Class Certification (Doc. 20 p. 5)). 16 the court will have to make findings of fact, to sustain their characteristics and therefore their claims for money. For these reasons, the court should decline to certify the class as defined and should refuse to certify smaller classes. Paciello v. Unum Life Ins. Co. of America, 188 F.R.D. 201, 205 (S.D.N.Y. 1999). Commonality. The commonality requirement "is aimed at determining whether there is a need for combined treatment and a benefit to be derived therefrom." Jenkins v. Raymark Industries Inc., 782 F.2d 468, 472 (5th Cir.1986) (citations omitted). As alluded to above, the plaintiffs' identification of the common issues in this case is grossly oversimplified. The Plaintiffs argue that because the case involves a common legal theory there is necessarily a predominance of questions of law or fact common to the class.9 (Exhibit 10 - Plaintiff’s Brief in Support of Motion for Class Certification (Doc. 20 p. 5)). Based on that faulty logic, every group of employees having a claim against a common employer, for example based on 42 U.S.C. 1983, necessarily compromises a single class under Rule 23 simply because the plaintiffs may ask the court to declare that the provisions of 42 U.S.C. 1983 apply to the case. Obviously, if the law applies to one employee' s claim, then it applies to all, however not every case brought under 42 U.S.C. 1983 necessarily has common questions of law or fact. The claims in this case will be determined based on whether each plaintiff can present evidence of his unique claim, not whether DYS is required to follow the law or whether the Fourteenth Amend applies (as opposed to the Eighth Case 2:06-cv-00755-MHT-CSC Document 27 Filed 04/03/2007 Page 16 of 25 For example a juvenile committed to state custody with a determinate sentence to serve until10 he is 21 years old and a juvenile committed for CHINS and ordered to attend drug treatment would have fundamentally different legal claims. As a result, they will have competing claims to a pool of money to be distributed as damages to the class. This issue also destroys typicality.11 17 Amendment). As discussed above under the section titled Numerosity, there are significant conflicts between the claims of the subclasses. If the Plaintiffs are successful, the result of this case will be a pool of money which must be distributed among the class members, some of whom have claims antagonistic to one another. Class counsel will then be required to allocate the10 money to the different kinds of plaintiffs, making decisions that necessarily favor some claimants over others. These subclass conflicts destroy the Plaintiffs' commonality, making the claims insufficiently cohesive to warrant adjudication by class representation. 11 Typicality. The typicality requirement focuses on the interests of the class representatives. Mack v. General Motors Acceptance Corporation, 169 F.R.D. 671, 675 (M.D.Ala. 1996). The typicality requirement limits the class claims to those fairly encompassed by the named plaintiff's claims. General Tel. Co. v. EEOC, 446 U.S. 318, 330, 100 S. Ct. 1698, 1706, 64 L. Ed.2d 319 (1980). A "defense peculiar to the named plaintiff or a small subset of the plaintiff class may destroy the required typicality of the class . . . [and] the adequacy of the named plaintiff's representation." J. H. Cohn & Co. v. American Appraisal Assoc., Inc., 628 F.2d 994, 999 (7th Cir. 1980); Shelley v. AmSouth Bank, 2000 WL 1121778, 4 (S.D.Ala., 2000). The rationale underlying this rule is that representation will be inadequate if the named plaintiff is preoccupied with her own separate defense or that she will not have the incentive to present Case 2:06-cv-00755-MHT-CSC Document 27 Filed 04/03/2007 Page 17 of 25 18 pertinent facts when the defense is not applicable to her but applicable only to a small portion of the class. Id. As discussed above, the purported class representatives’ claims are subject to different defenses, thus destroying typicality. Most glaring is the PLRA defense that applies to JB’s claim and the complexities of that claim resulting from his having been in state custody when the first complaint in this lawsuit was filed, the lawsuits having been consolidated, and JB’s having been returned to state custody during its pendency. In addition, the various groups of juveniles, for example CHINS, sex offenders, SJOs, determinate sentence commitments, etc., have significantly differing and competing arguments for “treatment”. Adequate Representation. Putative class counsel did not address the adequacy of representation issue as it relates to the characteristics of the proposed class representatives. The adequacy of representation inquiry involves questions whether class counsel are qualified, experienced, and generally able to conduct the proposed litigation, but contrary to the Plaintiffs’ argument also focuses on whether the plaintiffs have interests antagonistic to those of the rest of the class, and whether they will vigorously prosecute the litigation on behalf of the class. Ex Parte Government Employees Insurance Company, 729 S.2d 299, 307 (Ala. 1999), citing Griffin v. Carlin, 755 F.2nd 1516 (11th Cir. 1985). The Plaintiffs did not address whether the JB has a conflict with members of the class, whether he possesses certain qualifications, or whether the attorney for the class and the class representative are too closely related. The Plaintiffs’ glossing of the concept is a serious deficiency because adequacy of representation presents a due process issue with regard to whether the interests of the class are represented and therefore whether they can be bound by the holding of the case. The Plaintiffs’ brief on certification gives the impression that putative class counsel Case 2:06-cv-00755-MHT-CSC Document 27 Filed 04/03/2007 Page 18 of 25 19 intends to submit themselves as virtual class representatives and that the named plaintiffs are merely lending their names to the suit controlled entirely by class counsel. This is likewise a troubling issue with regard to JB’s adequacy as a representative. See Wright, Miller & Kane, 7A Fed. Pract. & Proc. Civ. 3d § 1766, pp 310-11. Courts consider such characteristics as (1) the representative's role as fiduciary for the class; (2) his interest in vigorously pursuing the case; (3) his general knowledge about the case; (4) his honesty and credibility; and (5) his lack of relation to class counsel. See e.g., Sheffield v. Homeside Lending, Inc., 281 B.R. 24 (Bankr.S.D.Ala.2000). The Eleventh Circuit has not established a standard of characteristics for an adequate representative for general application, however the general principle is that adequacy of representation is primarily based on “the forthrightness and vigor with which the representative party can be expected to assert and defend the interests of the ... class” and “whether plaintiffs have interests antagonistic to those of the rest of the class.” Kirkpatrick v. J.C. Bradford & Co., 827 F.2d 718, 726 (11th Cir.1987). Moreover, meeting these requirements might still be insufficient if the “named plaintiffs ... do not possess the personal characteristics and integrity necessary to fulfill the fiduciary role of class representative.” Id. Proposed class representative abdicated his role in this lawsuit to counsel. During JB’s deposition the following discussion took place: Q: Tell me what your understanding about this case is? A: “I really don’t know, I guess you’ll have to ask my lawyer.” Q: Okay. Do you have any understanding at all? A: All I know is that they held me at Air Base too long and my grandmother and my lawyer had asked for a lawsuit. (Exhibit 2 - JB depo. p. 28, lines 6-9). This goes to the heart of the adequate representative analysis. See e.g. Darvin v. International Harvester Co., 610 F.Supp. 255, 257 (S.D.N.Y. Case 2:06-cv-00755-MHT-CSC Document 27 Filed 04/03/2007 Page 19 of 25 She testified that the she has physical custody but apparently that testimony was based on the12 fact that JB has lived with her off and on for several years because she clarified that there is no court order awarding her custody. (Exhibit 7 - Ward depo. p. 44, line 18- p. 46, line 11). The Defendant does not argue that Ms. Ward will be a class representative but that she must13 have standing to be JB’s representative because he lacks capacity due to his age. 20 1985), Massengill v. Board of Education, 88 F.R.D. 181 (N.D. Ill. 1980), cited with approval in Kirkpatrick v. J.C. Bradford & Co.,827 F.2d 718, 727 (11 Cir. 1987). Moreover, JB hasth communicated with putative class counsel only approximately three times. (Exhibit 2 - JB depo. p. 30, line 5 - p. 31, line 2). He doesn’t know his lawyers’ phone numbers or where to find them. (Exhibit 2 - JB depo. p. 31, lines 3-10). It is quite unlikely that JB will even be available throughout this lawsuit. JB plans to get a job in construction when he gets out of state custody. (Exhibit 2 - JB depo. p. 34, lines 7-19). JB’s testimony makes clear that his great grandmother Addie Ward and putative class counsel were the motivating forces behind this lawsuit. Addie Ward is 78 years old and she does not have legal or physical custody of J.B and she is not his legal guardian. JB’s father12 Kenneth Turner has legal custody and is his guardian. He is not a party to this suit. Ms. Ward may not have standing to file suit on behalf JB under 17(b) Fed.R.Civ.P. 13 Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004). In Elk Grove, the Supreme Court recognized that the father's parental authority was derived from state law. In Alabama, 'next friend' standing is not granted automatically to whomever seeks to pursue an action on behalf of another. Prerequisites for 'next friend' standing include providing an adequate explanation--such as disability due to age--why the real party in interest cannot appear on his own behalf to prosecute the action. The Defendant does not dispute this issue. But the 'next friend' must also be truly dedicated to the best Case 2:06-cv-00755-MHT-CSC Document 27 Filed 04/03/2007 Page 20 of 25 Putative class counsel also represents JB in the pending criminal charges. Not only does the14 existence of pending charges over which JB claims a 5 Amendment privilege separate JB as anth 21 interests of the person on whose behalf he seeks to litigate. Moreover, it has been further suggested that a 'next friend' must have some significant relationship with the real party in interest. The burden is on the 'next friend' clearly to establish the propriety of his status and thereby justify the jurisdiction of the court. Ex parte Ray-El, 911 So.2d 1100, 1102-3, (Ala.Crim.App., 2004). The Defendant does not dispute whether Ms. Ward has a significant relationship or the desire to act in JB’s best interest, but whether she has the ability to truly prosecute the action on behalf of JB or a class of juveniles. She is 78, has cancer, and has little income. Proposed class representative JB testified that his motive in this case is “to see that people get shipped off to their programs sooner than what they do.” (Exhibit 2 - JB depo. p. 32 lines 1-8). However this is an action for money damages. Aside from the logical non sequitur of claiming money damages yet wanting only quicker placement for juveniles, JB has either distinguished his interests as antagonistic of the claims of the putative class members seeking monetary damages or demonstrated that he has no understanding of the case–either of which are fatal to his ability to adequately represent the purported class. JB has not shown himself to posses the personal characteristics of a responsible individual who will protect the interests of the class. During the pendency of this lawsuit JB has already committed acts that caused him to be recommitted to state custody. Moreover, a new criminal charge is currently pending against JB over which class counsel advised JB to take the 5 Amendment. JB refused to testify regarding that pending charge pursuant to thatth advice. 14 Case 2:06-cv-00755-MHT-CSC Document 27 Filed 04/03/2007 Page 21 of 25 inadequate representative of the class, but putative class counsel's instruction to JB not to answer questions relevant to class certification based on the 5th Amendment brings up a serious question of putative class representatives’ adequacy to represent the class. Rule 23(b) provides for a class certification if: 15 (3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually 22 The underlying legal issue in this case is whether juvenile delinquents have a constitutional right to rehabilitative treatment similar to the constitutional right to treatment of individuals committed to state custody for mental health reasons. There is no doubt that one purpose of commitments to DYS is punishment because of his theft and firearms violations. Punishment is the means to accountability. JB and Addie Ward claim that JB should have been placed in treatment instead of being required to wait in detention until a bed became available; however JB has attended two previous treatment programs but he testified that the only thing that may have convinced him to stop using drugs is having been locked up. (Exhibit 2 - JB depo. p. 19, line 8- p. 21, line 1). His testimony is antagonistic to the claims of the class that they need treatment–not punishment–for their rehabilitation. His serious criminal conduct separates him from any juveniles who could have a legitimate shot at a right to treatment. Class representative must have a strong incentive to vigorously prosecute the action, and this is shown if he has a substantial monetary investment. JB has absolutely no monetary investment in this case whatsoever. Rule 23(b)(3). Plaintiffs seek certification pursuant to Rule 23(b)(3). Additional requirements exist under Rule 23(b)(3) . The Plaintiffs have the burden of proving those15 Case 2:06-cv-00755-MHT-CSC Document 27 Filed 04/03/2007 Page 22 of 25 controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; ©) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action. 23 additional requirements. PREDOMINANCE. The Court must determine whether there are individualized issues of fact and how they relate to the common issues. The individualized fact issues have been introduced herein. The Plaintiffs offered no information to assist the Court on the true substance of the analysis. SUPERIORITY. Then the Court must examine how the class action process compares to the available alternatives: either individual suits or joinder; consolidation, intervention, or other nonrepresentational forms of aggregate litigation; test cases; more narrowly defined class actions, and agency enforcement. See Manual for Complex Litigation, § 21.142. The Plaintiff has submitted no information nor purported analysis regarding this question. The Defendant submits that the class action process is not superior. The Defendant will show that the various groups of juveniles committed to state custody have different claims to treatment. The individual characteristics of each plaintiff will bear heavily on the merits of each claim and there is no way to avoid the problem–particularly in light of the fact that the Plaintiff has not acknowledged subclasses. On the other hand, a ruling that there either is a right to rehabilitative treatment on behalf of the Plaintiff individually, or a ruling that there is no right to rehabilitative treatment under the law in this circuit, will result in the answer to a question that has long been in dispute. There is simply no need for class certification. Case 2:06-cv-00755-MHT-CSC Document 27 Filed 04/03/2007 Page 23 of 25 24 MANAGEABILITY. The Defendant submits that if a class could be certified and subdivided appropriately, the analysis of the proof whether each individual fits in a particular class, or in no class, would be incredibly voluminous and fact-intensive inquiries. Many juveniles have complex backgrounds and sufficient data and expert analysis is simply missing because there has never been a suggestion that the individual needs “treatment.” Others have significant information available but analysis of that information requires extensive fact-finding. The Plaintiffs have submitted absolutely no information regarding this issue. CONCLUSION The Defendant submits that the Plaintiffs have failed to sustain their burden of proof under Rule 23. The Defendant submits that the proposed class cannot be certified under the provisions of Rule 23(b)(3). Respectfully submitted, TROY KING ATTORNEY GENERAL s/ T. Dudley Perry, Jr. T. Dudley Perry, Jr. Bar Number: PER-034 Deputy Attorney General Post Office Box 66 Mt. Meigs, AL 36057 Telephone: (334) 215-3803 Fax: (334) 215-3872 E-Mail: dudley.perry@dys.alabama.gov Case 2:06-cv-00755-MHT-CSC Document 27 Filed 04/03/2007 Page 24 of 25 25 CERTIFICATE OF SERVICE I hearby certify that on the 3 day of April, 2007, I electronically filed the foregoingrd BRIEF IN OPPOSITION TO PLAINTIFF’S MOTION FOR CLASS CERTIFICATION, with the Clerk of the Court Using the CM/ECF system which will send notification of such filing to the following: Michael J. Crow, Esq. BEASLEY, ALLEN, CROW METHVIN, PORTIS & MILES, P.C. Post Office Box 4160 Montgomery, AL 36103-4160 Robert D. Drummond, Jr., Esq. ATTORNEY AT LAW 323 De LaMare Fairhope, AL 36532 s/T. Dudley Perry, Jr. T. Dudley Perry, Jr. Bar Number: PER-034 Deputy Attorney General Attorney For Defendant J. 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