Arreola, Gilbert v. Godinez, Salvador

In the

United States Court of Appeals

For the Seventh Circuit

No. 07-1700

G ILBERT A RREOLA,

Plaintiff-Appellant,

v.

S ALVADOR G ODINEZ, Director, Cook County Jail,

T HOMAS D ART, Cook County Sheriff,

E RNESTO V ELASCO , former Director,

Cook County Jail, and C OOK C OUNTY, Illinois,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 03 C 2854—Matthew F. Kennelly, Judge.

A RGUED JANUARY 25, 2008—D ECIDED O CTOBER 14, 2008

Before B AUER, W OOD , and E VANS, Circuit Judges.

W OOD , Circuit Judge. While incarcerated at Hill Correc-

tional Center (“Hill”) in Galesburg, Illinois, Gilbert Arreola

broke his ankle during a recreational soccer game. Five

days later, he was transferred to Cook County Jail (“the

Jail”) for a temporary stay, so that he could testify in

2 No. 07-1700

unrelated judicial proceedings at the Cook County Court-

house. Dissatisfied with the medical care and conditions

of confinement at the Jail, Arreola filed a five-count

complaint under 42 U.S.C. § 1983. The first two counts

were the subject of a separate appeal, which we decided

on July 14, 2008. See Arreola v. Choudry, 533 F.3d 601

(7th Cir. 2008). There, we rejected Arreola’s contention

that he was entitled to a new trial on his claim that the

medical treatment he received at Hill from Dr. Mohammed

Choudry violated his rights under the Eighth Amendment.

The present appeal comes to us under F ED. R. C IV. P.

23(f), which permits courts of appeals to accept interlocu-

tory appeals from decisions granting or denying class

certification. Arreola wishes to serve as the class represen-

tative for a class of inmates who have been injured by the

Jail’s policy of denying crutches in certain areas of the

Jail to the inmates who live there. Arreola argues that this

“Crutch Policy” violates the Eighth and Fourteenth

Amendments because it mandates deliberate indiffer-

ence to the serious medical needs of inmates and creates

unconstitutional conditions of confinement. Because he is

seeking, on behalf of the putative class, both injunctive

relief and damages, Arreola sought certification under

F ED. R. C IV. P. 23(b)(2) and (b)(3). After he filed his motion

for class certification, the district court bifurcated the

proceedings, severing Arreola’s individual claims against

Dr. Choudry from his class claims against Cook County

and the responsible officials at the Jail (“the County

defendants” or “the County”).

In an order dated January 30, 2007, the district court

denied certification for the proposed Rule 23(b)(2) class

No. 07-1700 3

for injunctive relief and denying without prejudice the

proposed Rule 23(b)(3) class for damages. Arreola ap-

pealed under Rule 23(f), and in an order issued March 21,

2007, we agreed to accept his appeals. We conclude that

the district court properly denied Arreola’s motion for

certification of a Rule 23(b)(2) class for injunctive relief,

but we remand the case for further proceedings on his

individual claims and his motion for certification under

Rule 23(b)(3).

I

Arreola injured his ankle at Hill on April 22, 2001. The

medical treatment he received in the immediate after-

math of his injury was the subject of his claim against

Dr. Choudry, and so we do not discuss it further. What

concerns us is the sequence of events that began on

April 27, five days after Arreola’s injury, when he was

temporarily transferred to the Jail for purposes of

testifying in post-convictions proceedings. While at the

Jail, Arreola was housed in Division Nine. Like almost

all housing areas in the facility, Division Nine was gov-

erned by an official Jail policy that prohibits inmates

housed there from using crutches or canes whenever

they are in the “living units.” Instead, those medical

devices—to which inmates can obtain access only if a

doctor has prescribed their use—are “to be stored in the

officer’s control room” at all times when the inmate is

in the living units. When inmates are “off of the living

units,” they may use their crutches and canes.

The “living units” include the inmates’ cells, a dayroom,

bathrooms, and a shower area. The inmates spend almost

4 No. 07-1700

all of their time in these areas; they must receive authoriza-

tion to leave if, for example, they wish to visit the law

library or a courthouse. It is undisputed that under the

Policy, any inmate who has been prescribed crutches or

a cane for any reason (sprain, break, amputation, surgery,

fracture, etc.) cannot use his devices while in the living

units.

The Policy is only one page long. The copy in the record

applies to “Division IX,” but it is undisputed that the same

“Divisional Policy” applied to all but two of the 11 divi-

sions in the Jail. The version we have went into effect in

January 1996 and was revised in November 2000. The text

is divided into “GENERAL RESPONSIBILITIES” and

“SPECIFIC RESPONSIBILITIES.” The former provides:

Handicapped individuals are those who, by reason of

their infirmities, may be unable to participate in typical

institutional programs and who may require special

medical care or physical assistance to function in the

institutional setting. Because Division Nine is not

handicapped accessible on the living units (i.e. bath-

rooms, showers & water fountains)[,] the Department

has designated Division Eight as the division where

physically challenged inmates are housed in a

manner that provides for the inmates safety and

security. Division Nine is not designed for handi-

capped inmates use and the Division doesn’t provide

for integration of the handicapped with the inmates

in general population.

(All caps omitted; original punctuation reproduced.) The

“Specific Responsibilities” section adds the following

guidelines for implementing the Policy:

No. 07-1700 5

1. Division nine only houses inmates who are ambula-

tory. However, the division Is handicap accessible

foe staff and visitors.

2. Crutches/canes are permissible walking aids off of

the living units.

3. Crutches/canes are not to be on the living units.

Crutches/canes are to be stored In the officer’s control

room.

4. If an inmate is unable to use the divisions resources

(cells, bathrooms, showers, Stairs, etc.) The watch

commander shall be notified and a transfer to divi-

sion Eight initiated.

(Original spelling and punctuation reproduced.)

Thus, the Policy specifies that the only way for inmates

to obtain access to crutches or canes in the living units is to

be transferred to Division Eight, the Handicapped Unit.

There, the facilities are adapted for the handicapped, and

inmates may keep their crutches and canes with them

while in the living units. According to the testimony of two

attending physicians, who are employed by Cermak Health

Services to provide medical care to the Jail’s prisoners,

decisions about which inmates are “handicapped” (and

thus should be transferred to Division Eight) are left to

the discretion of the corrections officers at the Jail; med-

ical professionals, the prison doctors stated, have no

authority to change the inmates’ housing assignments.

Thus, Arreola is claiming, the Policy does not assure that

inmates needing crutches are moved to the Division that

can accommodate them.

6 No. 07-1700

The defendants dispute the accuracy of that testimony,

contending that Cermak Health Services and its

physicians have the responsibility and authority to deter-

mine where an inmate or detainee is placed—and that, in

this case, Cermak sent Arreola to Division Nine, not to

the infirmary or to Division Eight. (We are not told di-

rectly, but we presume that the infirmary is the other

division of the Jail in which the Policy does not apply.) This

factual dispute ultimately is not material to Arreola’s

appeal, but we note that the Policy itself does not resolve

it, for its use of the passive voice in specific responsibility

4 obscures who determines that an inmate is not ambula-

tory and who notifies the watch commander to initiate

a transfer.

While at the Jail and subject to the Policy, Arreola

did not have access to his crutches at any time while in

the living units. He continually asked to be given his

crutches or to be transferred to another division where

he could use them, but officers at the Jail denied his

requests. Their only reason for refusing to let him use his

crutches in Division Nine was the Policy; the record

reveals no reason why they refused to send him to

Division Eight. Arreola thus was forced to try to walk on

his broken ankle, despite repeated orders from the Jail’s

physicians that the ankle should not bear any weight. As a

result, he experienced extreme pain. His inability to use

the crutches also hindered the proper healing of his

injury and caused his cast to deteriorate as a result of the

excess pressure he had to apply to it. When Arreola was

taken to the Cook County Courthouse to testify in his

judicial proceedings, he was permitted to use his crutches

No. 07-1700 7

only after he left the living units. His complaint alleges

that, at the conclusion of his hearing as he was being

escorted back to the Jail, he slipped on a stairwell in the

courthouse, further aggravating his injury and breaking

apart his already-deteriorated cast. He believes that this

fall was caused in part by the fact that he never learned

properly to use his crutches, because he was denied

access to them at the Jail.

Arreola’s stay at the Jail lasted about one month; on May

21, 2001, he was moved to a facility in Joliet, Illinois; he

then went back to Hill on May 23. He alleges that during

his time at the Jail, he tried several times to file grievance

forms or complaints about the Policy, but those efforts

were thwarted. Once he was back at Hill, he was able to

file the relevant grievances, but they were denied. Having

exhausted his administrative remedies, he turned to the

federal courts for relief.

Arreola began these proceedings pro se in April 2003.

When he filed his complaint, he also asked the court to

recruit counsel for him. The district court obliged, but after

two years of minimal progress on Arreola’s claims, the

court granted counsel’s motion to withdraw. Shortly

thereafter, on March 29, 2005, the court recruited a new

attorney, Laura Cullison, to represent Arreola. She has

done so ably and remains his counsel on appeal.

Once Cullison got up to speed on the case, she moved for

leave to file a second amended complaint adding class-

action allegations to Arreola’s complaint. Over the

County’s objections, the district court granted her request,

and in the same order, dated December 13, 2005, the

8 No. 07-1700

court severed counts I and II (individual claims against

Dr. Choudry) from counts III, IV, and V (class claims

against the County and claim for indemnification). Arreola

filed his second amended complaint the following day,

December 14.

The County answered the complaint in April 2006.

Arreola’s motion for class certification came one month

later, along with the close of fact discovery. Two weeks

later, on May 26, the County moved for summary judg-

ment and requested a stay of class certification pending

the district court’s resolution of the motion for sum-

mary judgment. Arreola asked for a stay of the County’s

motion until the close of expert discovery and for briefing

to proceed on his motion for class certification. The district

court granted the County’s request, stayed the class-

certification motion, and set a briefing schedule on the

summary-judgment motion. On October 10, Arreola filed

his response to the County’s motion, as well as a cross-

motion for partial summary judgment on his claim

alleging deliberate indifference by the County defendants

acting in their official capacities. Arreola’s response

included a rebuttal to the County’s argument that Arreola

lacked standing to pursue injunctive relief, because he

was no longer housed at the Jail, and emphasized

Arreola’s recent disclosure of 10 potential additional class

members.

The court issued its order a few months later, on January

30, 2007. The order did several things: it granted in part

and denied in part the County’s motion for summary

judgment; it denied Arreola’s cross-motion for partial

No. 07-1700 9

summary judgment; and it denied Arreola’s motion for

class certification, in part without prejudice. The court

decided that because Arreola was no longer incarcerated

at the Jail, he lacked standing to pursue injunctive relief.

With respect to Arreola’s claim for damages, however, the

court concluded that the inquiry was too fact-specific to

be decided as a matter of law, and so it denied both

sides’ motions for summary judgment. It also held that

defendant Ernesto Velasco, the former Director of the

Jail and the only County defendant sued in both his

official and individual capacities, was not entitled to

summary judgment or qualified immunity at that stage.

After explaining its rulings on the parties’ motions

for summary judgment, the court addressed class certifica-

tion. It rejected the Rule 23(b)(2) class for injunctive

relief on the basis of its prior determination that Arreola

lacked individual standing to pursue an injunction. The

court then denied, without prejudice, the certification of

a Rule 23(b)(3) class for damages, because of its doubts

at that point in the proceedings about whether Arreola

could show that his claims were typical of the class as

a whole, that class issues predominated, and that a class

action was a superior, fair, and efficient method for

resolving the controversy. The order noted that “[i]f

Arreola wishes to pursue class certification on the

damages claim, he must renew his motion by no later

than February 20, 2007.” Arreola did not do so; instead,

he requested permission from this court to file an inter-

locutory appeal under Rule 23(f), challenging the denial

of certification for each class, and those issues are now

before us.

10 No. 07-1700

While his appeal was pending, however, the district

court set a trial date for the individual damages claims

against the County defendants that had survived sum-

mary judgment. Arreola moved to stay those proceedings

pending the outcome of this appeal, but the district court

denied his request. On August 22, 2007, he tried his luck

in this court, invoking Rule 23(f) in support of a motion

to stay the trial. After receiving an explanation from

the district court, this court issued an order on Septem-

ber 5, 2007, granting Arreola’s motion to stay trial on his

individual claims against the County pending resolution

of this appeal.

II

To obtain class certification, a plaintiff must satisfy the

requirements of FED. R. C IV. P. 23(a) and fall within at least

one of the categories identified in Rule 23(b). Gen. Tel. Co.

v. Falcon, 457 U.S. 147, 156 (1982); Harriston v. Chi. Tribune

Co., 992 F.2d 697, 703 (7th Cir. 1993). Failure to meet any

of the Rule’s requirements precludes class certification.

Harriston, 992 F.2d at 703. Recognizing that Rule 23 gives

the district courts “broad discretion to determine

whether certification of a class-action lawsuit is appro-

priate,” this court reviews such decisions deferentially,

Chavez v. Ill. State Police, 251 F.3d 612, 629 (7th Cir. 2001),

and will “reverse a district court’s ruling regarding class

certification only when we conclude that the district court

abused its discretion in reaching its decision.” Harriston,

992 F.2d at 703.

No. 07-1700 11

Though he acknowledges the general applicability of

the abuse-of-discretion standard of review, Arreola

contends that where, as here, the district court has

denied the proposed Rule 23(b)(2) class because it has

determined that the plaintiff lacks standing, our review

of the underlying standing question should be de novo. In

general he is correct that “[w]hether a party has standing

to bring a ‘case or controversy’ before the court is a ques-

tion of law that this court reviews de novo.” Winkler v. Gates,

481 F.3d 977, 982 (7th Cir. 2007). If factual findings

entered into the district court’s decision, we review

those for clear error. Id.

We agree with Arreola that the question of his standing

is an antecedent legal issue that we must resolve before

proceeding to our evaluation of the district court’s class

certification decision. See Payton v. County of Kane, 308

F.3d 673, 676 (7th Cir. 2002) (in the context of appellate

review of denial of class certification, explaining that legal

questions of standing and mootness receive de novo re-

view). Compare Mace v. Van Ru Credit Corp., 109 F.3d 338,

340 (7th Cir. 1997) (“Ordinarily a denial of class certifica-

tion is reviewable for abuse of discretion. But here the

district court has determined that the FDCPA bars serial

class action suits. This determination is purely legal, and

we review de novo.” (citations omitted)).

Although the two concepts unfortunately are blurred at

times, standing and entitlement to relief are not the

same thing. Standing is a prerequisite to filing suit, while

the underlying merits of a claim (and the laws

governing its resolution) determine whether the plaintiff

12 No. 07-1700

is entitled to relief. As we noted in Payton, supra, “Article III

requires that the plaintiff has suffered an injury in fact

which is fairly traceable to the challenged action of the

defendant and likely, as opposed to merely speculative,

to be redressed by a favorable decision.” 308 F.3d at 677

(internal quotation marks omitted); see also Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). When

deciding questions of standing, courts must look at the

case as a whole, rather than picking apart its various

components to separate the claims for which the

plaintiff will be entitled to relief from those for which he

will not. If the court becomes too enmeshed in the plain-

tiff’s entitlement to relief, it will stray beyond the

standing inquiry into the merits. Here, the district court

appears to have made just this error when it found that

Arreola “lacked standing to pursue injunctive relief ” as a

result of the fact that he was no longer housed at the

Jail and was unlikely to return at all—much less to return

with a lower-extremity fracture that would require the

use of crutches or a cane—such that he would be reason-

ably likely to be subjected to the Policy again. As we

explain, the district court was correct to see a problem

with this part of Arreola’s case, but the problem is not one

of standing.

Arreola satisfied each of the Article III requirements

for standing to sue. His complaint alleged an “injury in

fact” that is traceable to the Crutch Policy and can be

redressed by a lawsuit. See Payton, 308 F.3d at 677. While

it is true that he may no longer be entitled to all types

of relief that he requested, the law does not preclude a

No. 07-1700 13

plaintiff from filing suit simply because some forms of

relief may be unavailable, or indeed because in the end

he cannot prove that he is entitled to any relief. Just as

we observed in Payton, the inherent problem with the

idea of “standing to bring a class action” is that it

“conflat[es] the standing inquiry with the inquiry under

Rule 23 about the suitability of a plaintiff to serve as a

class representative[.]” Id. Though we recognize that

prior decisions of this and other courts have sometimes

used this kind of terminology, nothing has turned on it.

In our view, it is best to confine the term “standing” to

the Article III inquiry and thus to keep it separate from

the plaintiff’s entitlement to relief or her ability to

satisfy the Rule 23 criteria. Cf. Harriston, 992 F.2d at 703

(“To have standing to sue as a class representative, the

plaintiff must be part of the class and possess the same

interest and suffer the same injury as the class members.”

(quoting E. Tex. Motor Freight Sys., Inc. v. Rodriguez, 431

U.S. 395, 403 (1977) (emphasis added) (internal quotation

marks omitted))); Holmes v. Fisher, 854 F.2d 229 (7th Cir.

1988).

We accordingly conclude that Arreola did have

standing to pursue his lawsuit. Whether he is entitled to

relief on any or all of those claims and whether he may

serve as an adequate class representative for others assert-

ing such claims are separate questions, to which we

will return shortly.

14 No. 07-1700

III

A

Before addressing the requirements of Rule 23, we

must dispose of two arguments that the County

defendants have asserted. First, they contend that the

district court should not have allowed Arreola to file

his second amended complaint—which first asserted the

class claims—primarily because Arreola did not attempt

to file it until two and one-half years after commencing

his suit. This was a matter, however, well within the

district court’s discretion. See F ED. R. C IV. P. 15(a). As

the County acknowledges, district courts have broad

discretion to deny leave to amend where there is undue

delay, bad faith, dilatory motive, repeated failure to

cure deficiencies, undue prejudice to the defendants, or

where the amendment would be futile, see Foman v. Davis,

371 U.S. 178, 182 (1962); Thompson v. Ill. Dep’t of Prof’l

Regulation, 300 F.3d 750, 759 (7th Cir. 2002). But, even

assuming that any of those conditions were present here

(and we see none), the district court’s discretion under

Rule 15(a) is not a one-way street: it applies equally to

decisions to deny and to grant leave to amend. In

response to the County’s accusation that Arreola was

“dilatory” in raising his class claims, the district court

stated that although “this has delayed a long time . . . [t]hat

is not Mr. Arreola’s fault,” because his first lawyer

dropped the ball, which led the court to recruit new

counsel, who, understandably, needed “time . . . to get

up to speed.” For the same reasons, we reject the County’s

attempt to persuade us that Arreola’s timing ran afoul

of Rule 23(c).

No. 07-1700 15

The County also contends that the second amended

complaint should not have been allowed because the

class claims do not “relate back” to Arreola’s initial com-

plaint. It reasons that the unnamed putative class mem-

bers are time-barred under the class action tolling

doctrine established by American Pipe & Construction Co.

v. Utah, 414 U.S. 538 (1974), and Crown Cork & Seal Co., Inc.

v. Parker, 462 U.S. 345 (1983). But the district court ad-

dressed this point, finding that relation back is appropri-

ate here because “it has been clear from the outset, even

from the pro se complaint, that Mr. Arreola was challeng-

ing the same policy that is at issue in the class action

claim.” Under Rule 15(c)(1)(B), nothing more is required.

That rule provides that an amended pleading relates

back to the date of the original pleading where “the

amendment asserts a claim or defense that arose out of

the conduct, transaction, or occurrence set out—or at-

tempted to be set out—in the original pleading.” (We note

as well that although the amended pleading changed the

potential group of plaintiffs in the case, it did not change

the party or the naming of the party against whom the

claim was asserted, and thus there is no problem under

Rule 15(c)(1)(C).) The district court did not abuse its

discretion in finding relation back to be appropriate here.

Finally, the County asserts that the second amended

complaint failed properly to plead numerosity for pur-

poses of Rule 23(a)(1). This argument goes nowhere. The

County criticizes Arreola’s numerosity allegations as

being nothing but “bare bones,” but under the federal

notice-pleading regime, that is all that is required. The

County then argues that Arreola failed to establish

16 No. 07-1700

numerosity, but in doing so it moves from an argument

about the pleadings to a question of the merits (at a

minimum, the merits of the class-certification issue), and

so we need not let the County’s challenge to the

propriety of the second amended complaint detain us

any longer.

The second major preliminary argument that the

County raises is one based on a consent decree entered in

the case of Duran v. Brown (formerly Duran v. Dart), No. 74

C 2949 (N.D. Ill. Nov. 14, 2003). According to the

County, the decree requires all claims for injunctive

relief regarding conditions in the Cook County Jail to be

brought as contempt actions in the Duran case, which was

then pending in the Northern District of Illinois. The

County concedes that the Duran decree applies to

pretrial detainees and that Arreola was a post-conviction

inmate during his temporary stay at the Jail. Nonetheless,

it says, he was somehow bound to the decree as a “third-

party beneficiary.”

This argument is convoluted and ultimately unavailing.

First, if Arreola is, as the County argues, a third-party

beneficiary to the decree, we have trouble seeing how his

status as a “beneficiary” would operate to preclude him

from filing his claim against the County defendants.

Second, and more crucially, the consent decree provides

no basis for denying Arreola’s pursuit of class certifica-

tion. The decree stems from a case brought in 1974 by

pretrial detainees to address overcrowding problems at

the Jail. The order on which the County relies was issued

several months after Arreola filed his lawsuit, and so it

No. 07-1700 17

would apply to Arreola only if he someday returns to the

Jail. That, of course, is the very event that the County

asserts is so unlikely to occur that Arreola has no current

stake in an action to enjoin the Crutch Policy. Arreola also

points out that the County raised this argument in the

district court; Arreola moved to strike, but the district

court declined to issue a ruling either way, and so we

have no findings from the lower court addressing

whether the decree applies here or not.

We hold that the Duran decree has no bearing on this

case. It addressed overcrowding and related issues (such

as food service, personal hygiene, access to the law

library, exercise, and emergency situations), none of

which comes close to the Jail’s policy with respect to

medical devices in the living units.

B

We are now ready to address the proper subject of this

Rule 23(f) appeal: whether the district court erred in its

class-certification rulings. A plaintiff seeking class cer-

tification must satisfy all of the criteria enumerated in

Rule 23(a)—numerosity, commonality, typicality, and

adequacy of representation—and fall within at least one

subsection of Rule 23(b). Arreola asserts that he has

satisfied Rule 23(a) and that the class he would like to

represent is a hybrid one covered by both Rule 23(b)(2)

and 23(b)(3).

18 No. 07-1700

1

Although there is considerable overlap for purposes of

Rule 23(a) between Arreola’s proposed class actions

under Rule 23(b)(2) for injunctive relief and under

Rule 23(b)(3) for damages, we think it best to analyze the

two separately. We begin with his proposed effort to

represent a class of inmates at the Jail who want injunc-

tive relief against the Crutch Policy—his proposed Rule

23(b)(2) class.

Rule 23(a)(1): Numerosity

The County argues that Arreola failed to establish this

requirement by neglecting to provide detailed and

specific information to the trial court about the potential

number and identities of possible class members. It is true

that the party supporting the class cannot rely on “mere

speculation” or “conclusory allegations” as to the size of

the putative class to prove that joinder is impractical for

numerosity purposes. Roe v. Town of Highland, 909 F.2d

1097, 1100 n.4 (7th Cir. 1990). But the County’s argument

here is based on its contention that Arreola never

identified a single potential class member and never

provided sufficiently detailed testimony from the

prison physicians to support the existence of a definitive,

identifiable class.

The record does not bear out the County’s allegations. As

early as October 10, 2006, Arreola provided the names

and last-known addresses of 14 potential class members.

We can assume that 14 would not be enough, but that is

No. 07-1700 19

not the only evidence in the record. The physicians’

testimony supports a much larger estimate. For example,

an attending orthopedist who supervises the Cermak

Orthopedic Clinic one day per week stated in his deposi-

tion that, on average, he sees at least one inmate each week

who has a fresh fracture requiring a prescription for

crutches. Arreola’s proposed class includes inmates

affected by the Policy as of mid-2001, meaning that the

number of inmates with fractures for whom this doctor

has prescribed crutches would exceed 350. And that is just

one physician, who supervised the orthopedic clinic one

day each week. Moreover, because the district court

decided the summary-judgment motions before allowing

full briefing and argument on the class-certification

issues, Arreola and his counsel did not have an opportu-

nity to develop a complete factual record or to present

alternative arguments relating specifically to class certifica-

tion. The record as it stands shows that Arreola either

already has established numerosity, or at a minimum

that he has shown enough to warrant further discovery

on the issue.

Rule 23(a)(2): Commonality

Arreola argues that most of the issues involved in this

case, and especially the constitutionality of the Crutch

Policy, are common to all potential class members. With

respect to his proposed (b)(2) class, we agree with him.

The County does not seem to contest this point; its argu-

ments about commonality focus only on the problems

it sees with the potential (b)(3) class, to which we return

below.

20 No. 07-1700

Rule 23(a)(3): Typicality

With respect to typicality, the County’s argument echoes

its point on numerosity: because Arreola did not provide

“the name of a single putative class member who

is similarly situated to Arreola,” it asserts, he cannot

possibly show that his claims are “typical” of other class

members’ claims. We have summarized typicality

analysis as follows:

A claim is typical if it arises from the same event or

practice or course of conduct that gives rise to the

claims of other class members and her claims are

based on the same legal theory. Even though some

factual variations may not defeat typicality, the re-

quirement is meant to ensure that the named represen-

tative’s claims have the same essential characteristics

as the claims of the class at large.

Oshana v. Coca-Cola Co., 472 F.3d 506, 514 (7th Cir. 2006)

(quotation marks and citations omitted). According to

the County, Arreola cannot establish typicality because

he has not shown that the class is “sufficiently identifiable

or definite.” But that is not part of the typicality inquiry;

it is a complaint about class definition. The County has not

argued that the class definition was too broad, or too

vague, for it to know who its adversary is, and it is too

late now to raise a new argument. As far as typicality

is concerned, we are satisfied that Arreola has raised

claims that “arise[] from the same event or practice or

course of conduct” as his own.

Once again, the record does not support the County’s

accusations that Arreola’s evidence lacks sufficient detail

No. 07-1700 21

to establish typicality. As we mentioned earlier, by

October 10, 2006, Arreola had filed documents showing

that he was in the same boat as hundreds of patients with

fresh or acute lower-extremity fractures who needed

crutches. He also produced the deposition testimony of

several officers working at the Jail, both in Division Nine

and in other divisions, who testified that they never

allowed inmates to keep their crutches in the living units,

and, crucially, that they never had transferred an inmate

to Division Eight (the Handicapped Unit) because the

inmate had been prescribed crutches. The physicians who

testified also said that they had no authority to change

inmates’ housing assignments. If believed, that would

show that any decision to transfer an inmate or not to

transfer was, de facto, the responsibility of the corrections

officers. Arreola’s claims are typical of those of his poten-

tial fellow class members.

Rule 23(a)(4): Adequacy of Representation

It is here that Arreola’s efforts to serve as class represen-

tative for a Rule 23(b)(2) class meet their demise. At this

point, we return to the district court’s analysis of the

question whether Arreola possesses a sufficient personal

stake in prospective relief to be an adequate representa-

tive for a class seeking to enjoin the Policy. As the district

court found (using “standing” terminology), while Arreola

has a concrete stake in his claim for damages, his interest

in prospective relief is too tenuous (and was too tenuous

even when he first filed this lawsuit) to permit an award

of injunctive relief on his individual claims. By the

22 No. 07-1700

time Arreola filed this lawsuit, he was no longer at the

Jail. The likelihood that he will return to the Jail and will

once again be suffering from a lower-extremity fracture

requiring crutches is too speculative to support a right to

an injunction on his part. As we stated in Holmes:

To permit the certification of a class headed by a

“representative” who did not have a live controversy

with the defendant on the day the suit began would

be to jettison the last vestiges of the case-or-contro-

versy requirement in class actions. And why? Holmes

can pursue his claim for damages, and the precedent

will set the rule to be followed in the future. Or some

other litigant may file suit with a live claim. There is

no need to throw away a venerable constitutional

rule just to retain a replaceable champion.

854 F.2d at 233.

Arreola argues that because (1) the Jail typically serves

only as a temporary housing facility for inmates, (2) the

nature of injuries requiring a prescription for crutches

is often transitory, and (3) the Prison Litigation Reform

Act strictly requires prisoners to exhaust their admin-

istrative remedies before filing a lawsuit, the unique

circumstances of this case render it highly unlikely that

any “champion” could emerge to “replace” Arreola. We

are not convinced: indeed, some people need crutches

for a much longer period of time than Arreola

apparently did, and we cannot conclude that it would be

impossible for a more suitable representative of a Rule

23(b)(2) class to emerge. This also means that, contrary

to Arreola’s arguments, this case is not a good candidate

No. 07-1700 23

for application of the “capable of repetition, yet evading

review” concept. See U.S. Parole Comm’n v. Geraghty, 445

U.S. 388 (1980). The district court did not abuse its dis-

cretion in declining to certify Arreola as the representative

for an injunctive-relief class.

2

Arreola’s pursuit of certification for a damages class

under Rule 23(b)(3) is tied up, to a certain degree, with his

individual claim for damages. As we noted earlier, the

district court denied certification of his (b)(3) class

without prejudice, explaining that Arreola could re-file

the motion to certify a damages class within three weeks.

The County finds fault in Arreola’s failure to do so, but

that is only part of the story. In fact, Arreola froze that

issue in the district court by filing his motion under

Rule 23(f) with this court and asking us to review the

district court’s decision to deny certification under both

subsections of Rule 23(b). Once we granted that motion,

the issue of class certification was no longer before the

district court, and so there was nothing for Arreola to do

but to see it through here.

When we turn to the district court’s ruling, we see that in

fact there is no definitive decision granting or denying

certification of the proposed Rule 23(b)(3) class. The

court’s order of January 30, 2007, said only:

The Court denies, without prejudice, Arreola’s motion

to certify a class on his claims for damages. It is readily

apparent that the Court’s rationale for denying sum-

24 No. 07-1700

mary judgment on Arreola’s official capacity claims

impacts the issues of the typicality of Arreola’s claims,

whether class issues predominate, and whether a

class action is a superior method for fair and efficient

adjudication of the controversy.

Thus, the court expressed doubt about whether Arreola

could satisfy various requirements of both Rule 23(a) and

Rule 23(b)(3), namely, typicality, commonality, predomi-

nance of class issues over individual ones, and the ap-

propriateness of using the class-action device to resolve

these claims.

The parties’ briefs on appeal offer complete arguments

on the question whether the district court abused its

discretion in denying Arreola’s motion for certification of

a damages class. That jumps the gun, in our opinion,

because the district court did not issue a definitive rul-

ing. We do not even know whether the district court was

thinking of trying Arreola’s individual claim for damages

first, and then seeing whether class certification was

proper, although we doubt that this was the court’s plan,

given the command in Rule 23(c)(1)(A) that “[a]t an early

practicable time after a person sues or is sued as a class

representative, the court must determine by order whether

to certify the action as a class action.” (In any event, it

should not have been the plan: Rule 23 does not create a

form of one-way intervention under which class issues

need not be reached unless or until the plaintiff has won or

almost won.)

At most, the district court has expressed some

skepticism about Arreola’s ability to satisfy the criteria

No. 07-1700 25

for a damages class action. In a hearing that took place

the same day it issued its order, January 30, 2007, the court

questioned “whether Mr. Arreola’s claims are typical,

whether a class action is a good way of dealing with this.”

The court also commented that

any time you have got a class action involving dam-

ages, there is a fairly obvious issue about whether the

likelihood of having to have individual damage hear-

ings overwhelms the good that would come out of

having a class action.

Taken to its limit, this observation would mean that

there is never a proper class action under Rule 23(b)(3), but

that is obviously not the case. We note that even if each

damages calculation will be fact-bound to some degree,

many of the issues involved in this case, as we have noted

already, would be common among all potential class

members. It is also worth recalling that Rule 23(c)(1)(B)

specifically recognizes the possibility of certifying not

just “class claims,” but also class “issues.” See also

Rule 23(c)(2)(B)(iii) (addressing notice of “the class

claims, issues, or defenses”).

Although the extent of each class member’s personal

damages might vary, district judges can devise solutions

to address that problem if there are substantial common

issues that outweigh the single variable of damages

amounts. See Carnegie v. Household Int’l, Inc., 376 F.3d 656,

661 (7th Cir. 2004) (“Rule 23 allows district courts to

devise imaginative solutions to problems created by the

presence in a class action litigation of individual damages

issues.”). It would be premature for this court to express

26 No. 07-1700

an opinion one way or the other on the suitability of

Arreola’s case for (b)(3) class treatment. Our only point

here is that the need for individual damages determina-

tions does not, in and of itself, require denial of his motion

for certification. See, e.g., Allen v. Int’l Truck & Engine Corp.,

358 F.3d 469, 472 (7th Cir. 2004); In re Visa Check/

MasterMoney Antitrust Litig., 280 F.3d 124, 141 (2d Cir.

2001).

IV

The district court’s denial of class certification under

Rule 23(b)(2) is A FFIRMED. On the understanding that the

court has, as yet, made no definitive ruling on Arreola’s

motion for certification under Rule 23(b)(3), we R EMAND

for further proceedings consistent with this opinion on

that motion. Finally, bearing in mind the need for a timely

decision on class certification as required by Rule

23(c)(1)(A), we also R EMAND for further proceedings

consistent with this opinion in Arreola’s individual case

for damages. Each party shall bear its own costs on appeal.

10-14-08