Michael Driver v. Marion County Sheriff's Depar

In the

United States Court of Appeals

For the Seventh Circuit

No. 16-4239

MICHAEL DRIVER, individually and as

representative of a class of similarly

situated individuals, et al.,

Plaintiffs-Appellants,

v.

MARION COUNTY SHERIFF, et al.,

Defendants-Appellees.

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 1:14-cv-02076-RLY-MJD — Richard L. Young, Judge.

ARGUED FEBRUARY 21, 2017 — DECIDED JUNE 15, 2017

Before WOOD, Chief Judge, and FLAUM and ROVNER, Circuit

Judges.

ROVNER, Circuit Judge. The plaintiffs in this case brought a

class action pursuant to 42 U.S.C. § 1983 alleging that the

policies and practices of the Marion County Sheriff’s Depart-

2 No. 16-4239

ment and the Consolidated City of Indianapolis and Marion

County (collectively referred to as the “Sheriff”) caused them

to be detained in the Marion County Jail awaiting release for

an unreasonably long period of time, in violation of the Fourth

Amendment. The plaintiffs sought to certify five subclasses in

that action, and the district court granted certification as to two

of those subclasses, but denied it as to the remaining three. The

plaintiffs then filed a petition in this court seeking permission

to appeal the denial of two of those class certifications pursu-

ant to Federal Rule of Civil Procedure 23(f). Specifically, the

plaintiffs contested the court’s denial of two classes, consisting

of all individuals who, from December 19, 2012 to the present,

were held in confinement by the Sheriff after legal authority for

those detentions ceased, due to: (1) the Sheriff’s practice of

operating under a standard of allowing up to 72 hours to

release prisoners who are ordered released; and (2) the Sher-

iff’s practice of employing a computer system inadequate for

the purposes intended with respect to the timely release of

prisoners.

We granted permission for the interlocutory appeal

pursuant to Rule 23(f), and now proceed to the appeal on the

merits. We hold that the district court erred in its decision

denying class certification and remand the case to the district

court for further proceedings.

In order to certify a class, “‘a district court must find that

each requirement of Rule 23(a) (numerosity, commonality,

typicality, and adequacy of representation) is satisfied as well

as one subsection of Rule 23(b).’” Harper v. Sheriff of Cook

County, 581 F.3d 511, 513 (7th Cir. 2009). The plaintiffs sought

to certify a subclass based on the Sheriff’s policy, practice or

No. 16-4239 3

custom of allowing the jail staff to hold inmates for up to 72

hours before releasing them. The district court held that the

subclass as so defined would presuppose that some members

were detained for less than 48 hours and others for greater

than 48 hours. The district court believed that such a range of

detention periods was problematic, because the court—relying

on County of Riverside v. McLaughlin, 500 U.S. 44

(1991)—believed that the 48-hour line was a critical defining

period in establishing the reasonableness of the detention.

According to the district court, detentions of less than 48 hours

would be presumptively reasonable, and those that extended

beyond 48 hours would be presumptively unreasonable, thus

subjecting those members within the class to two different

burdens of proof.

The district court erred in applying the 48-hour presump-

tion to this context and in relying on it as a basis to deny class

certification. The court relied for that denial on the Supreme

Court’s holding in McLaughlin, which addressed the detention

resulting from a warrantless arrest and held that the amount of

time between the warrantless arrest and a judicial determina-

tion of probable cause was presumptively reasonable if it was

48 hours or less, and presumptively unreasonable if longer. See

McLaughlin, 500 U.S. at 56–57; Portis v. City of Chicago, Illinois,

613 F.3d 702, 703–04 (7th Cir. 2010). That time period necessar-

ily would include the time involved in processing and booking

the defendant, determining the appropriate charge and

preparing charging documents, assigning and transporting to

court, and ultimately obtaining a judicial determination of

probable cause. See McLaughlin, 500 U.S. at 55.

4 No. 16-4239

The class proposed by the plaintiffs involved a markedly

different situation. It is composed of persons for whom legal

authority for detention has ceased, whether by acquittal after

trial, release on recognizance bond, completion of jail time in

the sentence, or otherwise. For those persons, all that is left is

for the officials to merely process the release. None of the

myriad steps required in McLaughlin, between an arrest and a

judicial determination of probable cause, are required here; the

class members already qualify for release, and all that is left are

the ministerial actions to accomplish that release which are

within the control of the jail officials. Evidence in the record

indicates that the average time period to effect such a release

is 2–4 hours in counties in general, and up to 6 hours if

problems are encountered, but even if we doubled those times,

release still would be accomplished within 12 hours. Because

the tasks involved in the situation presented here are signifi-

cantly less onerous and less time-consuming than the ones

involved in McLaughlin, the 48-hour rule makes no sense in this

context.

Accordingly, the district court erred in denying the subclass

based on its perception that the 48-hour rule in McLaughlin

would create different burdens and challenges among the

potential subclass members. The only other reason given by

the court for denying the subclass was that individual variables

could complicate the timing of the release, but those variables

were present in McLaughlin as well and they did not preclude

class status. The Court in McLaughlin recognized that at some

point the State has no legitimate interest in detaining persons

for an extended period of time, and if the regular practice

exceeds that time period deemed constitutionally-permissible,

No. 16-4239 5

the State is not immune from systemic challenges such as a

class action. 500 U.S. at 55, 58–59. At some point well short of

the 24-plus hours alleged here, there is no reason to believe

that individual issues would account for that delay.

The defendants nevertheless claim that cases from our

circuit, Portis and Harper, foreclose class certification here. They

assert that those cases and McLaughlin provide that common

questions do not predominate where the core complaint

challenges the length of detention rather than the conditions of

confinement, and that any extended detention must be

evaluated on a case-by-case basis. Those cases do not support

that conclusion. In Harper, 581 F.3d at 512, the plaintiff sought

to bring a class action alleging that new detainees remanded to

the sheriff’s custody were unconstitutionally required to

undergo certain intake procedures. We held that the claims

were not appropriate for class disposition because Harper was

not challenging specific intake procedures, but instead was

asserting that the Sheriff was unconstitutionally holding

detainees after bond was posted. Id. at 514–15. The unconstitu-

tionality depended on the length of the delay, which was an

individualized determination because Harper did not allege

any overriding policy or practice causing the delay. Id. at

514–15. The only common issue alleged by Harper was

whether it was reasonable to assign a jail identification number

before releasing a detainee on bond—with the concomitant

delay that process entailed—but we held that the issue was not

central to his claim because it could not cause the type of

injuries asserted, and because it could not be unconstitutional

unless it took an unreasonable amount of time in an individual

case, thus again not supporting class disposition. Id. at 515–16.

6 No. 16-4239

Similarly, in Portis, 613 F.3d at 703, we addressed a class

challenge by persons subjected to custodial arrests for fine-only

offenses, alleging that the failure to release them within two

hours from generation of the central booking number was

unreasonable in violation of the Fourth Amendment. We held

that the Constitution forbids detentions that are unreasonable

in length, but that an arbitrary inflexible time period such as

two hours for release was not justified. Id. at 704. Accordingly,

the claims required an individualized determination as to

whether the delay in release was unreasonable, and class

certification was improper. We noted, however, that “[t]he

Supreme Court suggested in McLaughlin that class treatment

might be appropriate if the class sought to establish that a

jurisdiction had adopted a policy of deliberate delay.” Id. at

705. The Portis court explicitly stated that it did not foreclose

the possibility of class-wide relief if the record established such

deliberate delay. Id. at 705–06. Neither Portis nor Harper

preclude class certification in a case such as this one, in which

the plaintiffs assert that the defendants’ policy or practice

caused them to be detained for an unconstitutionally-unrea-

sonable length of time. See also Phillips v. Sheriff of Cook County,

828 F.3d 541, 550 (7th Cir. 2016) (the proper focus in determin-

ing commonality is whether the prospective class can “articu-

late at least one common question that will actually advance all

of the class members’ claims”).

On appeal, the defendants assert that the plaintiffs’ case

nevertheless cannot be certified because the alleged 72-hour

policy and practice upon which they rely does not exist or, if it

exists, it is constitutional. The district court refused to address

the merits of the allegation that the Sheriff operated under such

No. 16-4239 7

a 72-hour rule, stating that it was not appropriate to adjudicate

the case on its merits at the stage of class certification. As the

Supreme Court has noted, “Rule 23 does not set forth a mere

pleading standard,” and a party seeking class certification

“must be prepared to prove that there are in fact sufficiently

numerous parties, common questions of law or fact, etc.” Wal-

Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). To certify a

class, the trial court must satisfy itself “after a rigorous analy-

sis” that the Rule 23(a) prerequisites are established, and

“[f]requently that ‘rigorous analysis’ will entail some overlap

with the merits of the plaintiff’s underlying claim.” Id. at

350–51. That does not mean that the Rule 23 analysis is

transformed into a summary judgment motion. The defendants

argue the merits of the claim, challenging the existence and

constitutionality of the policies, without referencing the Rule

23 factors or establishing how those factors are impacted. The

district court properly recognized that its role in assessing class

certification did not include a determination of the case on the

merits. On remand, the court should, of course, consider

factual and legal issues comprising plaintiffs’ cause of action

insofar as those issues are necessary to a determination of the

Rule 23 factors. Id.; Parko v. Shell Oil Co., 739 F.3d 1083, 1085

(7th Cir. 2014); Szabo v. Bridgeport Machines, Inc., 249 F.3d 672,

675–76 (7th Cir. 2001).

The plaintiffs also challenge the denial of certification for a

class consisting of all individuals who, from December 12, 2012

to the present, were held in confinement by the Marion County

Sheriff after legal authority for those detentions ceased, due to

the Sheriff’s practice of employing a computer system inade-

quate for the purposes intended that dramatically delayed the

8 No. 16-4239

release of prisoners. The plaintiffs presented evidence that the

Sheriff acquired a computer system, OMS, from Global Tel

Link which offered the system to the Sheriff free of charge in

return for the Sheriff’s extension of GTL’s contract for inmate

collect call services. GTL provided the hardware, software,

installation and maintenance of the phones and lines, and

profited from the high rate charged to inmates for such collect

calls. Evidence indicated that the Sheriff profited from the

arrangement as well, receiving commissions totaling approxi-

mately $800,000 per year.

In addition, the plaintiffs produced some evidence that the

Sheriff bypassed the standard review process in choosing and

retaining the computer system, disregarding the impact on the

release times. At the time that it acquired OMS, the Sheriff

knew that the Marion County Courts were using software

called Odyssey. The Sheriff was also aware that, prior to

acquiring any jail information management software, it was

imperative to know whether the software would be compatible

with the court’s Odyssey software. Evidence nevertheless

indicated that the Sheriff acquired OMS outside the standard

channels bypassing the Information Services Agency which

was the Marion County agency formed to coordinate informa-

tion technologies among the City and County agencies and

through which such acquisitions are supposed to occur in

order to assure that the systems integrate with those of other

agencies. There is a dispute as to whether the Sheriff vetted

OMS; the Sheriff’s chief administrative officer testified that

prior to acquiring OMS the Sheriff’s department received

assurances from three IT people that OMS would work with

Odyssey, but the plaintiffs introduced evidence from those

No. 16-4239 9

three persons that they never vetted the system and were never

asked to do so.

As the district court noted, OMS was beset with technical

issues from the start; it could not interface with DEXTER, the

computerized transfer system that allowed agencies such as

the Sheriff, the Public Defender, the Prosecutor’s Office,

Community Corrections, and the Indianapolis Police Depart-

ment to exchange information with each other on Odyssey.

And with OMS the Sheriff could not receive electronic court

information, which required the Sheriff’s office staff to manu-

ally update and process the codes received from the court and

to rely on emails, paper records, faxes, and telephone calls to

gather information to make release decisions.

Finally, the record contains evidence that the Sheriff chose

to remain with OMS even in the face of the significant delays

in release times, and did not take efforts to measure the

magnitude of the problem. That delay in release often totaling

72 hours was significant both in the pure sense and in propor-

tion to the time that the prisoners could be properly detained.

For instance, the plaintiffs produced evidence of individuals

who served short sentences for DUI convictions of 5–9 days,

but for whom the 2–4 day delay in release increased their

incarceration time by 40–50%. Another person was arrested

and released by the court on bond two days later, but detained

3 more days awaiting release by the Sheriff, thus more than

doubling the period of detention. An expert produced by the

plaintiff found that from June to December 2014, 38,000 extra

days were spent in jail by inmates pending release compared

to the practice before OMS. The delays resulted in complaints

to the Sheriff’s department by judges, defense counsel and

10 No. 16-4239

family members, but in the face of those widespread excessive

delays the Sheriff chose to continue with OMS rather than

implement the compatible system recommended by its IT

people.

The class sought by the plaintiffs consisted of all individu-

als who, from December 19, 2012 to the present, were victims

of the computer issues spawned by OMS. The district court

denied certification of the subclass because it held that the class

was not “identifiable.” The court noted that the class descrip-

tion must be sufficiently definite to allow ascertainment of the

class members. Dist. Ct. Op. at 12 citing Alliance to End Repres-

sion v. Rockford, 565 F.2d 975, 977 (7th Cir. 1977). It held that

“[t]he definition of the subclass that Plaintiffs advance is

problematic because the technical issues plaguing OMS is one

of the overriding reasons for the over-detention of the entire

class. As such, the court is not convinced it is a policy or

practice from which this subclass can be anchored.” [emphasis

in original] Dist. Ct. Op. at 12. The court appears to deny

certification of the subclass because the policy or practice

caused the over-detention of the entire class. That, however,

would be a basis to grant certification of the class as a whole

rather than as a subclass, not to deny certification because it is

not limited to a portion of the class. We have recognized that

a class may lack the definitiveness required for class certifica-

tion if there is no way to know or readily ascertain who is a

member of the class, but that issue is not apparent here.

Jamie S. v. Milwaukee Pub. Sch., 668 F.3d 481, 495 (7th Cir. 2012).

The class is defined by all persons whose excessive detention

resulted from the inadequate computer system. Given the

evidence of a dramatic increase in detention times in correla-

No. 16-4239 11

tion with the implementation of the computer system, the

evidence that release information could not be properly

transmitted electronically in that system and the court having

to resort to alternative channels of communication, and the

absence of any evidence that delays of that length could be

attributable to individual factors, the class is capable of

definition both by the timing and the length of the delay in

release. Compare Oshana v. Coca-Cola Co., 472 F.3d 506, 513–14

(7th Cir. 2006) (in consumer fraud action alleging that Coca-

Cola was deceptive in failing to inform consumers that its

fountain Diet Coke contained saccharine, proposed class was

not sufficiently definite because it required only the purchase

of fountain Diet Coke and could include millions who were not

deceived). But we need not further define the class in this

appeal to conclude that the district court’s reasoning, in

denying class status because the alleged violation applied to

the class as a whole rather than a subclass, was an improper

basis to deny certification.

With respect to the denial of certification as to this class, the

defendants argue that the denial should be upheld because the

plaintiffs failed to present evidence sufficient to establish the

existence of an unconstitutional policy or practice and also

failed to present sufficient evidence of intent. We do not

understand the district court’s decision to hold that the

plaintiffs have not established that their injury resulted from a

policy or practice, as the defendants suggest; such an argument

would be difficult to make, as the determination to process

releases through the OMS system certainly appears to fall

within our understanding of what constitutes a policy or

practice. See generally Glisson v. Indiana Dept of Corrections, 849

12 No. 16-4239

F.3d 372, 378–80 (7th Cir. 2017)(en banc). And as to establishing

deliberate indifference, we have recognized in another context

that deliberate indifference can be shown by systemic and

gross deficiencies in equipment or procedures that result in a

deprivation of a constitutional right. See Phillips, 828 F.3d at

554. But as we discussed earlier, the district court did not

consider whether the policies or practices existed, nor did it

consider whether the evidence indicated deliberate indiffer-

ence, because the court determined that it was not allowed to

engage in an analysis of the merits, and therefore we are

presented only with the evidence recited above without any

factual findings by the court on those matters. The court on

remand should consider all issues related to the Rule 23 factors

even if they overlap with the merits, and can make the appro-

priate fact findings at that time. The issues have never been

decided by the district court and are not properly before us at

this time.

The decision of the district court is VACATED and the case

REMANDED for further proceedings consistent with this

opinion.