United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
J. Hale, Judge
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.
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)).
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
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.)
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 #
have moved to dismiss the class allegations pursuant to
Federal Rule of Civil Procedure 12(b)(6). (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. (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)
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.
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.” 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)
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.
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
Nature of the Claims
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)).
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).
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. (D.N. 8-2, PageID # 70)
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). 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
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.
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.”).
“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.
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.”Messner v. Northshore Univ.
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