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Healey v. Jefferson County Kentucky Louisville Metro Government

United States District Court, W.D. Kentucky, Louisville Division

March 28, 2018

JACOB HEALEY, et al., Plaintiffs,


          David J. Hale, Judge

         Plaintiffs Jacob Healey and Larry Louis Hibbs, Jr., bring this putative class action against Louisville-Jefferson County Metro Government and Director of Louisville Metro Department of Corrections Mark Bolton, alleging violations of state law and seeking relief under 42 U.S.C. § 1983 for alleged violations of their constitutional rights. (Docket No. 3) The action arises from Defendants' alleged practice of detaining individuals past their release dates and failing to comply with state-court orders concerning work release and home incarceration. Defendants move to dismiss the class allegations, arguing that Plaintiffs' proposed class fails to satisfy the requirements of Federal Rule of Civil Procedure 23. (D.N. 5) Defendants have also moved for an extension of time to file their answer to Plaintiffs' complaint, as well as to strike one of Plaintiffs' attached exhibits. (D.N. 6; D.N. 9) Meanwhile, Plaintiffs have filed several motions, including (i) a motion for a hearing on preliminary injunction and class certification; (ii) a motion for leave to file a second amended complaint; and (iii) a motion for a status conference. (D.N. 7; D.N. 8; D.N. 15) For the reasons set forth below, the Court will deny Defendants' motion to dismiss and motion for an extension of time to file their answer. The Court will deny without prejudice Defendants' motion to strike Plaintiffs' attached exhibit. Additionally, the Court will grant Plaintiffs' motion for leave to file a second amended complaint and their request for a status conference but deny their motion for a hearing as premature.

         I. Background

         The following facts are set out in the complaint and accepted as true for purposes of the present motions. See Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009) (citing Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009) (citations omitted)).

         Plaintiffs' complaint depicts a troubling practice in which Defendants have systematically failed to comply with state court orders pertaining to individuals' release dates, work releases, and home incarcerations. (See D.N. 3) The complaint names as class representatives Jacob Healey and Larry Louis Hibbs, Jr.

         In January 2017, the Jefferson County District Court ordered Jacob Healey incarcerated for 72 hours with work release. (Id., PageID # 17) Despite this court order, Plaintiffs allege, Healey was not released until he had served approximately 85 hours, none of which included work release. (Id.) In July 2016, the Jefferson County District Court ordered Plaintiff Larry Louis Hibbs, Jr., incarcerated for 30 days with extended work release. (Id.) Plaintiffs allege that despite this court order, Defendants refused Hibbs work release for the first 10 days of his sentence. (Id.)

         In support of their putative class action, Plaintiffs claim that Defendants' treatment of Healey and Hibbs is representative of an accepted, widespread practice on the part of Defendants, who “regularly and unlawfully falsely imprison, detain or incarcerate persons longer than ordered by [the] Courts of the Commonwealth of Kentucky.” (Id., PageID # 15) Plaintiffs thus seek to represent all persons “who have been unlawfully falsely imprisoned, detained or incarcerated longer than ordered by [the] Courts of the Commonwealth of Kentucky” within the last year. (Id., PageID # 13) They seek actual and punitive damages under § 1983, declaratory and injunctive relief, and damages under state law for negligence, gross negligence, and intentional infliction of emotional distress. (Id., PageID # 18-21)

         Defendants have moved to dismiss the class allegations pursuant to Federal Rule of Civil Procedure 12(b)(6).[1] (D.N. 5) Meanwhile, Plaintiffs have moved for a hearing on their motions for preliminary injunction and class certification, for leave to file a second amended complaint, and for a status conference.[2] (D.N. 7; D.N. 8; D.N. 15) Plaintiffs' proposed second amended complaint seeks to add three additional named class representatives. (See D.N. 8-2, PageID # 69-70) Defendants oppose Plaintiffs' motions for a hearing and for leave to file a second amended complaint. In addition, Defendants have moved to strike a Jefferson County District Court order attached in support of Plaintiff's motion for a hearing. (D.N. 9; see also D.N. 7-1)

         II. Standard

         Although Defendants “move to dismiss” Plaintiffs' class allegations, they are essentially asking the Court to strike the class allegations from the complaint. A defendant may move to strike class allegations even before a plaintiff has filed a motion for class certification. 1 McLaughlin on Class Actions § 3:4 (10th ed. 2013); see also Pilgrim v. Universal Health Card, LLC, 660 F.3d 943, 949 (6th Cir. 2011) (noting that a motion to strike may come before a motion to certify and that “either plaintiff or defendant may move for a determination of whether the action may be certified under Rule 23(c)(1)” (alteration removed)). Motions to strike are rare, “but are appropriate where the unsuitability of class treatment is evident on the face of the complaint and incontrovertible facts.” McLaughlin, supra, § 3:4.

         Courts within this circuit have held that for purposes of a motion to strike class allegations, “[t]he moving party has the burden of demonstrating from the face of [Plaintiffs'] complaint that it will be impossible to certify the class as alleged, regardless of the facts [P]laintiffs may be able to prove.”[3] Schilling v. Kenton Cty., Ky., No. 10-143-DLB, 2011 WL 293759, at *4 (E.D. Ky. Jan. 27, 2011) (citing Jimenez v. Allstate Indem. Co., No. 07-cv-14494, 2010 WL 3623176, at *3 (E.D. Mich. Sept. 15, 2010)). In other words, “before a motion to strike class allegations is granted, the [C]ourt must be convinced that any questions of law are clear and not in dispute, and that under no set of circumstances could the claims succeed in class action form.” Modern Holdings, LLC v. Corning Inc., No. 13-405-GFVT, 2015 WL 1481459, at *2 (E.D. Ky. Mar. 31, 2015) (quoting Sanders v. Apple Inc., 672 F.Supp.2d 978, 990 (N.D. Cal. 2009) (alterations omitted)).

         Thus, even when the class-action issue is before the Court in the context of a motion to strike, the central question is whether the Rule 23 prerequisites are met. Schilling, 2011 WL 293759 at *4 (citing Thomas v. Moore USA, Inc., 194 F.R.D. 595, 597 (S.D. Ohio 1999)); see also Bearden v. Honeywell Int'l, Inc., 720 F.Supp.2d 932, 942 (M.D. Tenn. 2010) (citing Smith v. Bayer Corp. (In re Baycol Prods. Litig.), 593 F.3d 716, 721 n.2 (8th Cir. 2010)). If the Court determines that it would be impossible for Plaintiffs to satisfy the Rule 23 prerequisites, the class allegations must be stricken. Schilling, 2011 WL 293759 at *4.

         III. Discussion

         In support of their motion to dismiss Plaintiffs' class allegations, Defendants present three arguments: (i) Plaintiffs' class definition constitutes an impermissible “fail-safe class”; (ii) Plaintiffs' putative class fails to satisfy Rule 23(a)'s prerequisites; and (iii) Even if the proposed class satisfies the prerequisites, Plaintiffs cannot demonstrate a common scheme by the Defendants, as required for certification under Rule 23(b)(2), or that common questions of law or fact predominate over individual questions, as required for certification under subsection (b)(3). (D.N. 5-1, PageID # 34) In light of Defendants' burden, however, the Court finds the arguments unpersuasive. Defendants fail to show that it would be impossible to certify the Plaintiffs' proposed class as currently defined. See Schilling, 2011 WL 293759 at *4.

         A. Nature of the Claims

         Plaintiffs' primary claim is a request for relief under § 1983 for Defendants' alleged unconstitutional practice of detaining class members past their release date. (D.N. 3, PageID # 18-19) In Shorts v. Bartholomew, the Sixth Circuit recognized a constitutional claim for over-detention, explaining that “an incarcerated inmate has ‘a liberty interest in being released at the end of imprisonment.'” 255 F. App'x 46, 51 (6th Cir. Oct. 17, 2007) (quoting Schultz v. Egan, 103 F. App'x 437, 440 (2d Cir. 2004); Davis v. Hall, 375 F.3d 703, 712-13 (8th Cir. 2004)). Such a claim “is most often attributed to the Due Process Clause of the Fourteenth Amendment, ” id., although “[t]he Eighth Amendment . . . may also be implicated when a prisoner has been detained past his maximum release date.” Thome v. Bevin, No. 3:17-CV-269-CRS, 2017 WL 3671314, at *3 (W.D. Ky. Aug. 25, 2017) (citing Beil v. Lake Erie Corr. Records Dep't, F. App'x 363, 368 (6th Cir. 2008)).

         In Shorts, the Sixth Circuit adopted a three-prong test for Fourteenth Amendment claims of over-detention. To succeed on his claim, a plaintiff must eventually demonstrate (1) “that a prison official had knowledge of the prisoner's problem and thus of the risk that unwarranted punishment was being, or would be, inflicted”; (2) “that the [defendant] either failed to act or took only ineffectual action under circumstances indicating that his or her response to the problem was a product of deliberate indifference to the prisoner's plight”; and (3) that “a causal connection between the [defendant's] response to the problem and the infliction of the unjustified detention” exists. Shorts, 255 F. App'x at 55 (quoting Sample v. Diecks, 885 F.2d 1099, 1110 (3d Cir. 1989)). When Shorts is read alongside Monell v. Department of Social Services, 436 U.S. 658, 694 (1978), it is clear that a plaintiff may state a claim of over-detention against a municipality by connecting his extended detention to a municipal policy or custom and showing that his particular injury was incurred as a consequence of that policy. See North v. Macomb Cty., No. 10-11377, 2011 WL 4576848, at *4 (E.D. Mich. Sept. 30, 2011).

         As Defendants note, however, not all of the proposed class members' claims pertain to over-detention. (D.N. 5-1, PageID #34) For example, proposed class representative Larry Louis Hibbs, Jr.'s, claims arise from Defendants' alleged refusal to allow him work release despite a state-court order that mandated such release. (D.N. 3, PageID # 17) And in Plaintiffs' proposed amended complaint, proposed class representative Cynthia Dawn Yates's claims arise from Defendants' alleged refusal to grant her home incarceration despite a state-court order that mandated such release.[4] (D.N. 8-2, PageID # 70)

         The Sixth Circuit has held that individuals do not have an inherent liberty interest in work-release programs. Canterino v. Wilson, 869 F.2d 948, 954 (6th Cir. 1989); see also Etheridge v. Adams, No. 5:05 CV P197 R, 2005 WL 3307093, at *3 (W.D. Ky. Dec. 1, 2005) (“The Sixth Circuit Court of Appeals has specifically held that the Fourteenth Amendment's Due Process Clause does not create a protected liberty interest in participating in prison employment, including work release.” (citing Codd v. Brown, 949 F.2d 879 (6th Cir. 1991)). District courts in this circuit and elsewhere have reached the same conclusion even where work release was court-ordered. See Carter v. McCaleb, 29 F.Supp.2d 423, 428 (W.D. Mich. 1998) (“[R]egardless of the source-a regulation, a statute, or a court order-a liberty interest is not implicated in a condition of sentence unless an ‘atypical hardship' must be endured in its absence.” (citing Sandin v. Conner, 515 U.S. 472 (1995))); see also Goodwin v. Woods, No. 2:15-CV-006-RWS, 2015 WL 2255053, at *7 (N.D.Ga. May 13, 2015) (“Plaintiff asks this Court to enforce the [state-court] order . . . that he serve his custodial sentence on work release . . . . [B]ut it also appears that Plaintiff does not have a federal constitutional right . . . to serve his sentence on work release.”); Laroque v. Beck, No. 5:09-CT-3025-H, 2009 WL 6617608, at *1 (E.D. N.C. Mar. 3, 2009) (“The court ordered recommendation for work release is merely a recommendation and does not create a constitutional right to work release.”); Martin v. Blue Ridge Reg'l Jail, No. 7:08-cv-00296, 2008 WL 1944232 (W.D. Va. May 2, 2008) (holding that a state official's failure to comply with court-ordered work release did not amount to a federal due process violation).[5] Additionally, given the lack of a constitutional liberty interest in work- release programs, courts have asked whether an interest is established under state law. This Court has held that Kentucky has not created such a liberty interest. Etheridge, 2005 WL 3307093 at *3.

         The fact that Plaintiffs seek to certify a class consisting both of individuals with colorable constitutional claims and individuals without such claims is problematic. As explained below, however, there are mechanisms to mitigate this concern such that the Court cannot conclude that it would be impossible to certify the proposed class.

         B. Fail-Safe Class

         In support of their motion to dismiss Plaintiffs' class allegations, Defendants first argue that the proposed class constitutes an impermissible fail-safe class. (D.N. 5-1, PageID # 36-37) An implicit requirement for Rule 23 certification is that the “class must be presently ascertainable based on objective criteria that do not require the [C]ourt to delve into the merits of the claims.” McLaughlin, supra, § 4:2; see also Rikos v. Procter & Gamble Co., 799 F.3d 497, 525 (6th Cir. 2015) (“[For] a class to be sufficiently defined, the court must be able to resolve the question of whether class members are included or excluded from the class by reference to objective criteria.”). A fail-safe class is thus impermissible because such a class is “defined by the merits of the plaintiffs['] legal claims, and is therefore unascertainable prior to finding of liability in the plaintiffs' favor.” Schilling, 2011 WL 293759 at *1 (alterations omitted); see also Randleman v. Fidelity Nat'l Title Ins. Co., 646 F.3d 347, 352 (6th Cir. 2011) (“Either the class members win or, by virtue of losing, they are not in the class, and therefore, not bound by the judgment.”).

         Yet “a ‘fail-safe' class is one that includes only those who are entitled to relief.” Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 538 (6th Cir. 2012). In other words, where a proposed class includes both those entitled to relief and those not entitled, the class is not a failsafe class. See id.; see also Kissling v. Ohio Cas. Ins. Co., No. 5:10-22-JMH, 2010 WL 1978862, at *2 (E.D. Ky. May 14, 2010) (explaining that in a fail-safe class, “[i]f a putative class member is in fact a member of the class, then he necessarily prevails on his claim, as class membership is also determinative of liability”). Indeed, “[t]he possibility that some members of the class may fail to prevail on their individual claims will not defeat class membership on the basis of the ascertainability requirement.” McLaughlin, supra, § 4:2.

         Plaintiffs' class definition does not constitute an impermissible fail-safe class. Plaintiffs seek to represent “all individuals, who in the year preceding the filing of [their] complaint, were unlawfully falsely imprisoned or detained or kept incarcerated longer than ordered by [the] Courts of the Commonwealth of Kentucky.” (D.N. 3, PageID # 14) As an initial matter, the Court recognizes that the definition's use of the world “unlawfully” is problematic. To determine whether a class member was unlawfully over-detained, the Court would need to determine the underlying merits of each member's claim. Still, the Court finds it unreasonable to strike the entire class allegation simply because of the inartful inclusion of a problematic word. Indeed, there is authority stating that the problem of a fail-safe class “can and often should be solved by refining the class definition rather than by flatly denying class certification on that basis.”[6]Messner v. Northshore Univ. HealthSytem, 669 ...

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