Petition for Writ of Certiorari — Brown v. Olson

In The

Supreme Court of the United States

TRACY BROWN,

etitioner

JEFFREY MARK OLSON,

Respondent

On Petition for a Writ of Certiorari

To the United States Court of Appeals

for the Seventh Circuit

PETITION FOR A WRIT OF CERTIORARI

Douglas J. Masson

Counsel of Record for Petitioner

P.O. Box 99

Lafayette, Indiana 47902

(765) 423-5404

djm@hlblaw.com

LEGAL PRINTERS LLC, Washington DC e 202-/47-2400 e legalprinters.com

QUESTION PRESENTED

Does a claim for injunctive relief become moot and

subject to dismissal under Article I], §2 of the United States

Constitution when a putative class representative loses his

personal stake after filing a complaint but before class

certification where the claims of the putative class typically

endure for one hundred thirty-nine (139) days and, not

uncommonly. over a year notwithstanding uncertainty at the

time the claim is filed as to when the claim of any particular

class member might expire, or is the claim saved as

"inherently transitory" under Gerstein v. Pugh, 420 U.S. 103

(1975) and its progeny?

il

LIST OF PARTIES

The parties to the proceeding below were

defendant/petitioner Tracy Brown, in his official capacity as

Sheriff of Tippecanoe County, Indiana, and

plaintiff/respondent Jeffrey Olson, on behalf of himself and a

class of those similarly situated.

1

TABLE OF CONTENTS

QUESTION PRB OBN LEO) on. cis ectenv en censapenes 1

Lae SAE PUREED oi vwS iv 6 cee dece sees tees eaen 1

py iP Me Bes ek yp er eer ii

By egg Fk ot Parr Vv

TABLE OF CITED AUTHORITIES ................ vi

SPR IY 5 i 5 6s he eas oR ee See esas 1

STATEMENT OF JURISDICTION ................. 1

CONSTITUTIONAL PROVISIONS INVOLVED....... 1

DEA LEOREIN EL OF FEE CASE 6 osc i ccc sees aecas ses Fs

REASONS TO GRANT THE PETITION ............. 3

]. The Seventh Circuit's decision expands the

"inherently transitory" mootness exception to

include claims which are only potentially

NOES ene eye a ea 5

II. Unlike the Seventh Circuit, this Court has

not recognized uncertainty of a claim's

duration at the inception of a particular

claimant's lawsuit as the essence of the

"inherently transitory" mootness exception.

Rather, it is the nature of the class claim

generally which must be transitory to qualify

for Tie CRE, ws 5k nk 3 oo ee ee ee (

II. The Seventh Circuit's ruling deepens a

split in the circuits. The Second, Third,

Seventh, and Tenth Circuits would likely

allow Mr. Olson's suit to proceed whereas the

First, Fourth, Fifth, Eighth, and Ninth likely

WHEE. os ck Ga ea eee er ree eee 12

| y

1\

A. Jurisdictions consistent with the

Seventh Circuit decision ............ Louw EE

B. Jurisdictions inconsistent with the

Seventh Circuit decision ............. re

RWI 26 ok eek oon oe wee ee es ee

V

TABLE OF APPENDICES

Appendix A - Opinion of the United States

Court of Appeals for the Seventh Circuit,

Decided February 4, 2010 .............. App. 1

Appendix B - Memorandum Opinion and

Order of the United States Distnct Court for

the Northern District of Indiana, June 22,

aoe fees eons ey ea eee ees App. 14

V1

Table of Cited Authorities

CASES

Alvarez v. Smith, _U.S.__; 1380S.Ct. 576

SOEs ig be We ea 4 AAS SO 8 6, 11

Board of School Com'rs of City of Indianapolis

ay es BRR eo 2 ys.) )

Clay v. Miller, 626 F.2d 345 (4th Cir. 1980) .......... 18

Comer v. Cisneros, 37 F.3d 775 (2d Cir. 1994) ........ 13

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

RSIS a apr adele 6, 8

Cruz v. Farquharson, 252 F.3d 530 (1st Cir. 2001) .. 14-15

Deposit Guaranty Nat. Bank v. Roper, 445 U.S.

es ee hee a eee 4 RE W 9

Gerstein v. Pugh, 420 U.S. 103 (1975) ........... passim

Holmes v. Pension Plan of Bethlehem Steel

Corporation, 213 F.3d 124 (3d Cir. 2000) ............ 13

promig Uv, 1008, 464 US. SUS (ISEB) . 2... eens 5

Inmates of Lincoln Intake and Detention Center

v. Boosalts, 705 F.2d 1021 (8th Cir. 1983) ......... 16-17

Kirkland v. Wade, 118 F.3d 667 (9th Cir. 1997) ....... 17

Vil

Later 0. safee, S75 US. SO UGG) ais coe hoe Se ees 5

Lusardi v. Xerox Corporation, 975 F.2d 964

bh Le A: re rg re arr erry 13

Milonas v. Williams, 691 F.2d 931 (10th Cir.

1 RE I a a ae eee TP Bete ay Oe eR 14

Olson v. Brown, 594 F.3d 577 (7th Cir. 2010) .... passim

Oregon Advocacy Center v. Mink, 322 F.3d

Se Cn, PE 6 bd doe ea Doce ee nees 18

Rocky v. King, 900 F.2d 864 (5th Cir. 1990) ....... 15-16

Rosetti v. Shalala, 12 F.3d 1216 (3d Cir. 1993) ........ 13

Sosna v. lowa, 419 U.S. 393 (1974) ............. passim

Swisher v. Brady, 438 U.S. 204 (1976) .............. 8-9

U.S. Parole Commission v. Geraghty, 445

ee he ENS ha RS eee 9,14, 18

Weinstein v. Bradford, 423 U.S. 147 (1975) ............ 9

Wilkerson v. Bowen, 828 F.2d 117 (3d Cir. 1987) ...... 13

Zurak v. Reagan, 550 F.2d 8&6 (2d Cir. 1977) ....... 12-13

Vill

CONSTITUTIONAL PROVISIONS AND STATUTES

tr Comet Ase Tet Oe ee kc eu caecesscsiilacm 16

28 USC 1254 ; |

ee ba ee ee so ae pale Gres

eo a nae is eee eke Se oat e

28 USC 1367 .. , ..4

Sy RR a ei A at cage ia On 4

28 USC 1446 . | | Mes ee ee kee RO . 4

42 USC 1983 ... | Ae re re ores

1

Petitioner Tracy Brown, Sheriff of Tippecanoe

County, Indiana, respectfully petitions for a wnt of certiorari

to review the opinion and decision of the United States

Circuit Court for the Seventh Circuit filed on February 4,

2010.

OPINIONS BELOW

The United States Court of Appeals for the Seventh

Circuit reversed the decision of the United States Distnct

Court for the Northern District of Indiana dismissing

Respondent's claim as moot. The Seventh Circuit's opinion

is reported at 594 F.3d 577 (7th Cir. 2010) and is reprinted

in the appendix hereto at App. 1. The district court's order

dismissing Respondent's claim as moot 1s available at 2009

WL 1766667 (N.D. Ind. 2009) and is reprinted in the

appendix hereto at App. 14.

STATEMENT OF JURISDICTION

The opinion of the United States Court of Appeals for

the Seventh Circuit for which Petitioner seeks review was

issued February 4, 2010. This petition was timely filed

within 90 days of the February 4, 2010 decision. The

jurisdiction of this Court to review the decision of the Court

of Appeals is invoked under 28 U.S.C. §1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

U.S. Const. Art. I, $2 provides in relevant part:

The judicial Power shall extend to all Cases,

in Law and Equity, ansing under this

Constitution, the Laws of the United States,

and Treaties made, or which shall be made,

under their Authority; to all Cases affecting

Ambassadors, other public Ministers and

Consuls; to all Cases of admiralty and

maritime Jurisdiction; to Controversies to

which the United States shall be a Party; to

Controversies between two or more States;

between a State and Citizens of another State;

between Citizens of different States; between

Citizens of the same State claiming Lands

under Grants of different States, and between

a State, or the Citizens thereof, and foreign

States, Citizens or Subjects.

STATEMENT OF THE CASE

Respondent Jeffrey Mark Olson was a prisoner of the

Indiana Department of Correction who was being held at the

Tippecanoe County Jail for the 139 day period between

August 29, 2008 and January 15, 2009. Petitioner Tracy

Brown is the Sheriff of Tippecanoe County, Indiana and 1s

responsible for the conditions at the Tippecanoe County Jail.

On January 2, 2009, while still incarcerated at the

Tippecanoe County Jail, Mr. Olson filed his complaint

seeking only injunctive relief with respect to alleged policies

and practices at the Tippecanoe County Jail that, according

to him, violated his nghts under the United States

Constitution and Indiana state law. With his Complaint, Mr.

Olson filed a motion for certification of a class consisting of

current and future persons incarcerated at the Tippecanoe

County Jail. At a given time, the jail population consists of

approximately 529 inmates with an average stay of 139 days.

On February 20, 2009, 128 of the inmates had been 1n the jail

for less than 30 days; 119 had been in the jail for between 30

and 90 days; 130 had been in the jail for between 90 and 180

days; 121 had been in the jail for between 180 and 365 days;

and 41 had been in the jail for over a year. The parties

agreed that this jail population was a representative sample.

On January 15, 2009, the Indiana Department of

Correction transferred Mr. Olson out of the Tippecanoe

County Jail. On March 13, 2009, Sheriff Brown filed a motion

to dismiss under Rule 12(c) of the Rules of Federal

Procedure. On March 18, 2009, the distnct court heard oral

argument on the motion for class certification but deferred

ruling pending Mr. Olson's response to the inotion to

dismiss. On June 23, 2009, the district court dismissed Mr.

Olson's claim as moot because Mr. Olson lost his personal

stake in the litigation pnor to class certification and

determined thac the putative class claim asserted by Mr.

Olson was not inwerently transitory such that class

certification, if granted, would "relate back" to the filing of

the Complaint.

Mr. Olson's complaint alleged four basic violations of

his rights at the jail: 1) An inadequate grievance process in

violation of Indiana law; 2) Inadequate access to a law library

in violation of Indiana law; 3) Inspection of his mail from the

courts outside of his presence in violation of the First and

Fourteenth Amendments to the United States Constitution

and Indiana law; and 4) Inspection of his mail from attorneys

outside of his presence in violation of the First and

Fourteenth Amendments to the United States Constitution

and Indiana law. Originally filed in the Tippecanoe Superior

4

Court 1, the case was removed to the United States District

Court for the Northern District of Indiana pursuant to 28

USC 1441 and 1446. The Distnct Court had onginal

jurisdiction of the case under 28 USC 1331 for federal claims

that the Sheriff of Tippecanoe County violated Mr. Olson's

rights under the First and Fourteenth Amendments to the

United States Constitution, actionable under 42 USC 1983.

The district court had supplemental jurisdiction of the state

law claims under 28 USC 1367.

On appeal, the United States District Court for the

Seventh Circuit had jurisdiction under 28 USC 1291. The

judgment of June 23, 2009 in the distnct court disposed of all

the issues in the case. Mr. Olson filed his notice of appeal on

July 7, 2009. On February 4, 2010, the Seventh Circuit

reversed the district court and remanded for consideration

of Mr. Olson's motion for class certification and for

consideration of Sheriff Brown's motion to dismiss. The

Circuit Court's reversal was based on its determination that

Mr. Olson's claim was inherently transitory and, therefore,

entitled to the exception to the mootness doctrine applied in

Gerstein v. Pugh, 420 U.S. 103 (1975). The Seventh Circuit

reasoned Mr. Olson's claim was "inherently transitory"

within the meaning of Gerstein because of uncertainty for

Mr. Olson or any other inmate about how long his or her

particular claim would remain viable, because a named

plaintiff's claim might expire before a district court judge has

an opportunity to rule on a motion for class certification, and

because there is a constant set of inmates subject to the

conditions alleged. Olson v. Brown, 594 F.3d 577, 582 (7th

Cir. 2010) (App. 9) ("While the ultimate length of

confinement does affect the applicability of the ‘inherently

transitory’ exception, the essence of the exception 1s

uncertainty about whether a claim will remain alive for any

given plaintiff long enough for a district court to certify the

class.")

REASONS TO GRANT THE PETITION

I. The Seventh Circuit's decision expands the

"inherently transitory" mootness exception to

include claims which are only potenttally

transitory.

The proper scope of federal jurisdiction is a matter of

fundamental importance. The Seventh Circuit's decision

expands the authority of a federal court to entertain moot

cases beyond what has been previously recognized by the

Supreme Court. Furthermore, the Circuit Courts have not

been uniform in their application of the "inherently

transitory” exception to mootness for putative class actions

that have not been certified. The case at hand presents

relatively simple and uncontested facts which will allow the

Court to squarely address the proper bounds of the

exception.

Article TI, §2 of the United States Constitution limits

the jurisdiction of the federal courts to actual cases or

controversies. Liner v. Jafco, 375 U.S. 301, 306 fn. 3 (1964).

Additionally, the Supreme Court has recognized a prudential

doctrine of mootness which limits a court's authority to

maintain jurisdiction over a case in which the controversy is

no longer "live." See Honig v. Doe, 484 U.S. 305, 330 (1988)

(Rehnquist, C.J. concurring). As a practical matter, in claims

for injunctive relief, this means that a plaintiff cannot seek to

enjom practices or procedures to which the plaintiff is no

6

longer subject. Alvarez v. Smith, U.S. __; 130 S.Ct. 576,

580-581 (2009).

The Supreme Court has carved out a narrow

exception for claims that are of such a limited duration that

strict application of mootness principles would allow the

claims to escape review entirely. In the class action context,

this means claims so transitory they will expire before a

district court has a reasonable opportunity to rule on class

certification; claims that are "inherently transitory." County

of Riverside v. McLaughlin, 500 U.S. 44, 51-52 (1991).

The Seventh Circuit's ruling in this case, however,

expands the exception beyond inherently transitory claims to

those which are potentially transitory. Rather than examining

generically the duration of the type of class claim asserted by

the plaintiff, the Seventh Circuit focused on the uncertainty

faced by any particular claimant at the outset. The facts of

this case are relatively simple. On average, an inmate is

subject to the policies and practices at the Tippecanoe

County Jail for 139 days, and 30% of the inmate population

is subject to those policies and procedures for over six

months. Forty-one inmates had been in jail for over a year.

It is not unreasonable to expect that a district court could

rule on a motion for class certification within such time

periods. Even if some inmates might be in the jail for shorter

durations and unable to obtain class certification prior to his

or her case becoming moot, the claim by its inherent nature

is not one likely to escape review entirely.

Under the Seventh Circuit's ruling, mere uncertainty

of duration at the outset of a particular claim is sufficient to

avoid mootness even where, as here, a non-trivial number of

7

potential claimants have claims that last in excess of a year.

The exception swallows the rule. The ruling 1s contrary to

Supreme Court precedent and adds to conflict between the

Circuits.

IT. Unitke the Seventh Circuit, this Court has

not recognized uncertainty of a claim's duration

at the inception of a particulary claimant's

lawsuit as the essence of the “inherently

transitory" mootness exception. Rather, tt 1s the

nature of the class claim generally which must

be transitory to qualify for the exception.

The Seventh Circuit's expansion of the "inherently

transitory" exception to mootness goes beyond the scope

recognized by this Court. The Court has recognized as

"inherently transitory" claims with durations measured in

terms of days and weeks, not those which can last for

months or even years. The exception was suggested in

Sosna v. Iowa, 419 U.S. 393 (1974). In that case, the plaintiff

was challenging an Iowa statute that required one year's

residency in the state before initiating divorce proceedings.

The plaintiff, through passage of time, had lost her personal

stake after certification of the class, but the Court

recognized that, upon certification, the class acquired a legal

status of its own. Jd. at 399. However, the Court went on to

recognize the possibility that class certification could be

deemed to "relate back" to the filing of the complaint where

the claim becomes moot as to the class representative

before a distnct court can reasonably be expected to rule on

the motion for class certification and where the issue raised

by the claim would otherwise evade review. Jd. at 402.

8

In the case of Gerstein v. Pugh, this Court applied, at

least hypothetically, the relation pack suggested by Sosna in

the context of a class of Florida pnsoners claiming a

constitutional right to a judicial hearing on the issue of

probable cause for pretrial detention. Under the Flornda

scheme, individuals could be incarcerated on a prosecutor's

information without any kind of judicial hearing for

approximately a month before any sort of judicial hearing.

420 U.S. at 106. The application was possibly hypothetical

because the Court stated that the record did not reflect

whether or not any of the named plaintiffs retained a

personal stake in the litigation until the time of class

certification. Even assuming they did not, however, the

Court said the case would be a suitable exception to the

requirement that a named plaintiff retain a personal stake

until class certification because it was uncertain if any

individual would remain in custody long enough for a district

court judge to certify a class and there was a constant class

of individuals suffering the deprivation. Jd. at 111, fn. 11.

The Court has not expanded the exception since the

Gerstein case. In a similar pretrial detention case, County of

Riverside v. McLaughlin, 500 U.S. 44 (1991), relation back of

an inherently transitory claim was deemed appropnate for

prisoners held up to seven days without a probable cause

determination. The Court also noted the applicability of the

"inherently transitory" exception in a case involving Double

Jeopardy questions about a Maryland procedure for juvenile

proceedings. Under the procedures, the juveniles’ case

would initially be heard by a master. However, within a

period of 30 days, the possibility existed for a trial court to

take action against the juvenile which was contrary to and

less favorable than the action recommended by the master.

9

Swisher v. Brady, 438 U.S. 204, 211 fn. 9, 213 fn. 11 (1976).

Additionally, the Court has clarified that a putative

class representative whose request for class certification is

denied while he or she still has a live claim that expires

thereafter, retains a personal stake in appellate review of the

procedural question of class certification. U.S. Parole

Commission v. Geraghty, 445 U.S. 388, 404 fn. 11 (1980).

By contrast, in a suit for injunctive relief with respect

to publication rules for a student newspaper, where a class

of high school students was certified without proper

attention to detail, the Court held that the ineffective class

certification was not enough to save the claim from

mootness where the named plaintiffs graduated. Board of

School Com'rs of City of Indianapolts v. Jacobs, 420 U.S. 128,

129 (1975). See also, Wetnstein v. Bradford, 423 U.S. 147

(1975) (Dismissing as moot inmate challenge to parole

procedures where district court declined to certify class and

inmate was fully paroled pnor to completion of appeal.)

Eroding the case or controversy requirement, as the

Seventh Circuit decision does, moves further along the path

to the use of the federal courts for "concerned bystander"

and "client-less" litigation warned of in dissent by Justice

Powell. U.S. Parole Commission v. Geraghty, 445 U.S. at 412-

413 (joined in dissent by Justices Burger, Rehnquist, and

Stewart); Deposit Guaranty Nat. Bank v. Roper, 445 U.S. 326,

353 (1980). In the present case, the Seventh Circuit forgives

Mr. Olson the lack of his personal stake with respect to

alleged practices at the Tippecanoe County Jail without

regard to the fact that, genencally, such claims will last, on

average, 139 days and, in a non-trivial number of cases, in

10

excess of a year. These are time frames which permit a

district court to rule on class certification, particularly if

properly notified about the urgency for such a ruling.

The Seventh Circuit's rationale for deeming Mr.

Olson's lack of a personal stake inconsequential to exercise

of federal jurisdiction 1s that there are others like him and

none of them can be certain when their particular claim will

expire. Olson v. Brown, 594 F.3d at 582-583 (App. 10-11)

("An individual incarcerated in a county jail may be released

for a number of reasons that he cannot anticipate. .. . This

uncertainty is precisely what makes the ‘inherently

transitory’ exception applicable in this case.") The Seventh

Circuit errs by analyzing a particular individual's claim

instead of the claim generally. Here, given the average

duration of the claims 1n question and that many claims last

in excess of a year, it is reasonably possible for a claim to

endure at least through class certification even if it might be

difficult at the outset to know whose particular claim will last

the longest. An exception requiring only that the duration of

a claim be uncertain at the outset and the existence of other

people with similar claims swallows the rule.

Inmates are not a special case. They may face

uncertainty about the future, but they are hardly the only

ones. Furthermore, the broadening of the exception is

unnecessary to accomplish its goals. The "capable of

repetition but evading review" line of exceptions to the

mootness doctrine is, as the name suggests, designed to

allow courts to address claims ofa type that would otherwise

evade review because of their perishable nature. Sosna v.

Iowa, 419 U.S. at 402. A pretrial detention probable cause

determination is the classic example. Such detention has a

11

very real effect on people, but, in cases like Gerstein and

County of Riverside, the claims did not last much mere than

thirty days and, therefore, absent an exception, there was a

very real possibility that a federal court would never be able

to address unconstitutional practices in that area, no matter

how many detainees tried to bring a claim, because the

inherent nature of the claim was so penshable.

By contrast, there is no real danger that the

conditions of confinement at the Tippecanoe County Jail

would escape review if Mr. Olson's suit is not allowed to

proceed. Ifa representative cross-section of inmates were to

bring suit and request class certification, it 1s not likely that

all of their claims would expire before a district court could

reasonably be expected to rule on a motion for class

certification. At the point the district court dismissed his

claim, Mr. Olson was merely a concerned citizen with

respect to conditions at the Tippecanoe County Jail. A

favorable ruling would not have provided him with any relief.

In fact, if the conditions about which he complained were

resolved independently of the litigation, he would not have

any reason to know or, particularly, to care. His interests

now are as a bystander, removed from the ongoing reality of

the actual conditions at the Tippecanoe County Jail. As to

Mr. Olson, this case is an abstract dispute about the law,

unlikely to affect him any more than it affects other citizens.

A dispute solely about the meaning of a law, abstracted from

any concrete actual or threatened harm, falls outside the

scope of the constitutional words "Cases" and

"Controversies." Alvarez v. Smith, 130 S.Ct. at 580-581.

12

II. The Seventh Circuit's ruling deepens a split in the

circuits. The Second, Third, Seventh, and Tenth

Circuits would ltkely allow Mr. Olson's suit to proceed

whereas the First, Fourth, Fifth, Eighth, and Ninth

likely would not.

In the wake of Sosna and Gerstein, the circuits have

implemented the inherently transitory exception to the

mootness doctrine in conflicting ways. The Second, Third,

and, to a lesser extent, Tenth Circuits have recognized

approaches that would permit Mr. Olson's claim to go

forward. By contrast, the First, Fifth, Eighth and, to a lesser

extent, the Fourth, and Ninth Circuits have recognized

approaches that likely would not permit Mr. Olson's claim to

go forward in those junsdictions.

A. Jurisdictions consistent with the Seventh Circuit

dects10n

The Seventh Circuit explicitly adopted the expansive

approach taken by the Second Circuit in Zurak v. Reagan,

550 F.2d 86 (2d Cir. 1977). In Zurak, suit was brought on

behalf of a class of Riker's Island inmates in New York

serving "definite" sentences which were between 90 days

and one year. Under New York law, such inmates were

permitted to request conditional release after serving 60

days. The subject of their claim was the chaotic procedures

associated with a conditional release determination. The

class certification motion was unopposed, but for reasons not

reflected in the record, the district court waited almost a

year to certify the class. By that time, all of the named

plaintiffs had been released. The Second Circuit reasoned

that mootness was not a problem because the short periods

13

of incarceration and the possibility of conditional release

created a “significant possibility" that any single named

plaintiff would be released prior to certification. "Because of

the relatively short penods of incarceration involved and the

possibility of conditional release, the alleged harm can hardly

be redressed while any possible plaintiff is still an inmate."

Id. at 91-92. The Second Circuit went on to regard as

"inherently transitory" claims of racial discrimination and

segregation by applicants for federal housing assistance in

Ene County, New York. Comer v. Cisneros, 37 F.3d 775 (2d

Cir. 1994) because the nature of the population of a public

housing market is transitory "in some sense" but, especially

because the district court failed to rule on a motion for class

certification for over two years. Jd. at 799.

The Third Circuit has also taken an expansive view

of the exceptions to the mootness doctrine in proposed class

actions, going so far as to state "So long as a class

representative has a live claim at the time he moves for class

certification, neither a pending motion nor a certified class

action need be dismissed if his individual claim subsequently

becomes moot." Holmes v. Pension Plan of Bethlehem Steel

Corporation, 213 F.3d 124, 135 (3d Cir. 2000). However, the

Third Circuit has recognized that its approach is not

universal and that other circuits have not recognized the

mere filing of a motion for class certification as allaying

mootness concerns when the motion 1s pending at the time

the named plaintiff loses his or her personal stake in the

litigation. Lusardi v. Xerox Corporation, 975 F.2d 964, 977 fn

19 (3d Cir. 1992); Rosetti v. Shalala, 12 F.3d 1216, 1224-1228

(3d Cir. 1993); Wilkerson v. Bowen, 828 F.2d 117, 121 3d

Cir. 1987).

14

The Tenth Circuit has also taken a position that is

somewhat consistent with that of the Second, Third, and

Seventh Circuits. Mootness did not bar a proposed class

action challenging conditions of detention at a boy's school

where the named plaintiffs were removed for their safety

shortly after the case was filed and before a class was

certified. The Tenth Circuit acknowledged that the district

court could not have reasonably been expected to rule on a

motion for class certification prior to the boys' removal and,

therefore, the exception to mootness noted in Gerstein and

Geraghty were applicable. The court did not examine the

nature of the claim generally to determine whether it was of

a type that would likely expire for any named plaintiff. That

notwithstanding, however, the Tenth Circuit also recognized

that the boys had not lost their personal stake at all since the

removal of the boys from the school was temporary and they

were subject to being returned to the conditions about which

they complained. Milonas v. Williams, 691 F.2d 931, 937-938

(10th Cir. 1982).

B. Jurisdictions inconsistent with the Seventh Circutt

decision

On the opposite side of the divide, the First Circuit

has decided that Gerstein and its progeny require it to look

at the nature of a claim generally and not necessarily the

specific circumstances of a named plaintiff's particular case,

to determine whether an "inherently transitory" exception 1s

justified. The First Circuit dismissed a claim by plaintiffs

challenging the inaction of the Immigration and

Naturalization Service in processing claims as moot. Within

seventy days of the proposed class complaint, the INS had

processed the plaintiffs’ applications and given them

15

favorable determinations. The district court denied the

motion for class certification and dismissed the claim as

moot. Affirming the district court, the First Circuit observed

that "the plaintiffs have not shown at this juncture that the

generic types of claims that they seek to pursue are likely to

evade review. To do so would necessitate a showing that the

claims are inherently transitory." Cruz v, Farquharson, 252

F.3d 530, 535 (1st Cir. 2001). Rather than taking the

position, as the Seventh Circuit has done, that Plaintiffs

claims were transitory because they could not know at the

outset when the INS would act on their particular

applications; to avoid mootness, the Plaintiffs would have to

show that the claims generally could not be expected to

endure long enough for a district court to rule on a motion

for class certification. Jd. at 535-536.

Similarly, the Fifth Circuit dismissed a class claim by

an inmate of a Louisiana state penitentiary concerning

sanitary conditions for inmates performing field work. About

five months after the inmate filed a suit for injunctive relief

on behalf of himself and those similarly situated, he was

removed ‘from the fields by prison officials following an eye

surgery. This removal was initially temporary but was

eventually made permanent. Rocky v. King, 900 F.2d 864,

865 (5th Cir. 1990). The distnct court declined to rule on

whether the claim was moot, instead denying the inmate's

motion for class certification and entering summary

judgment on the merits. The Fifth Circuit, recognizing

mootness as a threshoid matter, reversed the district court's

entry of Summary judgment on the ments and remanded the

case for dismissal as moot. The uncertainty of the duration

of Rocky's particular claim did not cause the Fifth Circuit to

regard class certification as relating back to the filing of the

lb

complaint. Instead, the court noted the existence of a

sufficient number of inmates who worked in the fields for

periods long enough to enable a district court to rule on a

motion for class certification. "Hundreds of inmates at

Angola apparently work in the fields and could file a claim

identical to that filed by Rocky. There is no indication that

Angola officials will remove such inmates from field work

before a district court rules on class certification in order to

render that claim moot." /d. at 870-871. The Fifth Circuit

regarded the situation at the penitentiary as self-regulating

against an intentional mooting of claims by prison officials.

Field worker inmates who objected to the conditions would

simply file claims to get removed from field work. Jd. at 871,

fn. 6.

In a case with facts very similar to Mr. Olson's, the

Eighth Circuit dismissed as moot the asserted class claims

of two inmates challenging the conditions of confinement of

sentenced offenders and pretrial detainees at a Nebraska

County jail. Inmates of Lincoln Intake and Detention Center v.

Boosalis , 705 F.2d 1021 (8th Cir. 1983). The named plaintiffs

lost their respective personal stakes at various points prior

tothe district court's denial of class certification. Specifically,

both were incarcerated at the county jail when the claim was

filed. The convicted inmate was released prior to moving for

class certification. The pretrial detainee was transferred out

of the jail after moving for class certification but before the

district court's ruling. Jd. at 1023. The Eighth Circuit

determined that the claim had become moot and did not

qualify for an exception to application of the mootness

doctrine, reasoning that Gerstein did not apply because,

whereas Gerstein involved only pretrial detainees, the

Lincoln Inmates case involved both convicted inmates and

L7

pretrial detainees and the inmates had made no showing

that, absent relation back of class certification, the claims

would evade review. Jd. at 1023-24, fn 2. The uncertainties

faced by inmates at that county jail did not persuade the

Eighth Circuit that the "inherently transitory" mootness

exception applied.

In another case similar to the one at hand, the Ninth

Circuit staked out something of a middle ground, holding

that it was up to the district court, not the circuit court, to

determine whether a claim was “inherently transitory"

within the meaning of Gerstein. Kirkland v. Wade, 118 F.3d

667, 670 (9th Cir. 1997). Kirkland involved a proposed class

action challenging the "chain gang" labor conditions at a

county jail housing pretrial detainees and misdemeanants.

The plaintiff filed a motion for class certification along with

the complaint. However, the district court postponed ruling

on class certification to consider the defendants’ motion to

dismiss. Shortly after postponing the ruling, the district

court was informed that the plaintiff had been transferred out

of the county jail. The Ninth Circuit held that the district

court erred by postponing a class certification determination.

On remand, the Ninth Circuit instructed the district court to

consider whether Wade's claim was "inherently transitory."

Id. ‘We note only that the claims have the potential for being

‘inherently transitory’; whether the class claims are in fact

‘inherently transitory’ is ultimately a decision for the district

court, and we do not in any way suggest what result that

court should reach." Jd. The average length of detention at

the county jail was noted as an important detail for this

analysis. In Mr. Olson's case, by contrast, the district court

reviewed the average length of detention and concluded that

the class claims Mr. Olson was attempting to bring were not

18

so transitory as to evade review. Also see, Oregon Advocacy

Center v. Mink, 322 F.3d 1101, 1116-1118 (9th Cir. 2003)

(Analyzing Gerstein and Geraghty in the context of a non-

class claim and finding significance 1n a brevity of detention

such that "any individual detainee's claim would probably

become moot before tnal.")

Finally, without a great deal of discussion, the Fourth

Circuit dismissed as moot the injunctive class claims of an

inmate at the Halifax County Jai! for a proposed class of

county jail inmates incarcerated at the county jail for more

than thirty days. Clay v. Miller, 626 F.2d 345 (4th Cir. 1980).

Clay sought to represent a class of county inmates and

challenge conditions at the jail related to exercise

opportunities for inmates. He was released from jail in

August of 1979. The district court entered summary

judgment in favor of the Sheriff and denied Clay's motion for

class certification in November of 1979. The Fourth Circuit

relied on Sosna v. Jowa in dismissing the claims for

injunctive relief because Clay had been released from the

county jail and was, therefore, not a member of the class he

sought to represent at the time distnct court denying his

motion for class certification. Jd. at 346-347.

Ultimately, Article Ifl, §2 of the United States

Constitution 1s the foundation of federal judicial authority.

Exceptions to limitations on that authority should not be

made lightly. This Court has set forth the conditions under

which a litigant who no longer has a personal stake may,

nevertheless, maintain a class action for injunctive relief.

Those conditions require that the nature of the claim itself

be so transitory as to create uncertainty as to whether such

a claim could ever endure long enough for a district court to

19

rule on class certification. The Circuit Courts are fractured

in how they have implemented the decisions of this Court

concerning “inherently transitory" clams. The Seventh

Circuit has gone beyond what this Court has permitted. With

relatively uncomplicated facts and straight forward

procedural setting, the present case is a good vehicle for

clanfying the contours of the "inherently transitory"

exception to mootness in class action cases and for resolving

the conflict among the circuits 2s to the proper application of

that exception.

CONCLUSION

The petition for certiorari should be granted.

Respectfully submitted,

Douglas J. Masson

Counsel of Record

HOFFMAN, LUHMAN & MASSON, PC

P.O. Box 99

Lafayette, Indiana 47902

Telephone: (765) 423-5404

Facsimile: (765) 742-6448

E-mail: djm@hlblaw.com

App. 1

In the United States Court of Appeals

For the Seventh Circuit

No. 09-2728

JEFFERY MARK OLSON, on behalf of himself

and a class of those similarly situated,

Plaintiff-Appellant,

v,

TRACY BROWN, in his official capacity as Sheriff

of Tippecanoe County,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Indiana, South Bend Division.

No. 4:09-CV-00006—Allen Sharp, Judge.

ARGUED NOVEMBER 10, 2909

DECIDED FEBRUARY 4, 2010

Before POSNER and FLAUM, Circuit Judges, and

DERYEGHIAYAN, District Judge.

‘Hon. Samuel Der-Yeghiayan, District Judge for the Northern District

of Iihnois, is sitting by designation.

FLAUM, Circuit Judge.

A putative class of plaintiffs, represented by Mark

Olson, filed a complaint against the Sheriff of Tippecanoe

County, Tracy Brown, alleging several First Amendment

violations and violations of Indiana law in the Tippecanoe

County Jail. Olson filed for class certification at the same

time he filed the complaint. Shortly after Olson filed the

complaint and motion for class certification, the Indiana

Department of Correction transferred him out of Tippecanoe

County Jail. Because the transfer took place before class

certification, the district court dismissed the suit as moot.

Olson appeals the dismissal on the ground that this case is

inherently transitory for any possible named plaintiff and

therefore falls within the exception to the mootness doctrine

announced in Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43

L.Ed.2d 54 (1975). We find that this case fits within the

exception to the mootness doctrine carved out for inherently

transitory cases and therefore we reverse the district court's

dismissal.

Il. Background

Tippecanoe County Jail ("TCJ") is a temporary

detention center that houses inmates awaiting trial, release

on bail, or transfer to the Indiana Department of Correction,

or serving sentences of less that one year. The parties

stipulate that the following statistics regarding the inmate

population as of February 20, 2009 represent a typica

portrait of the inmate population at any given time: TC]

housed 529 inmates; 128 inmates had been incarcerated for

less than 30 days; 119 inmates had been incarcerated

App. 3

becween 30 and 90 days; 130 inmates had been incarcerated

between 90 and 180 days; 121 inmates had been incarcerated

between 180 and 365 days; 41 inmates had been incarcerated

for more than 365 days; and the average length of stay for

the 529 inmates was 139 days. Coincidentally, Olson was

incarcerated at TC] for exactly 139 days-from August 29,

2008 through January 15, 2009.

TCJ employs a grievance policy to address inmate

concerns. Once an inmate files a grievance, the jail is

responsible for responding to the grievance within seven

days. If the inmate does not agree with the decision, he or

she may appeal. The jail then has fifteen days to respond to

the appeal. While incarcerated at TCJ, Olson filed

twenty-one grievances and twenty-one grievance appeals.

The jail never responded to any of them. Olson maintained

a journal recounting the precise language of each grievance

and each grievance appeal. Olson's grievances included two

grievances regarding jail staff opening his legal mail outside

of his presence, one regarding a denial of access to the law

library, and one regarding the jail's failure to respond to

grievances.

On January 2, 2009, while incarcerated at TCJ, Olson

filed this complaint and a motion for class certification.

Olson's complaint set forth claims for injunctive relief

against the Sheriff of Tippecanoe County with respect to four

basic conditions of his confinement: (1) an imadequate

gnievance procedure, in violation of Indiana law; (2)

inadequate access to the law library, in violation of Indiana

law; (3) inspection of mail from the courts outside of his

presence, in violation of the First and Fourteenth

Amendments of the United States Constitution and Indiana

App. 4

law; and (4) inspection of mail from attorneys outside his

presence, in violation of the First and Fourteenth

Amendments of the United States Constitution and Indiana

law. With the motion for class certification, Olson included

affidavits of fifty-three inmates detailing their experiences

with jail staff opening their legal mail outside of their

presence, denying them access to the law library, and failing

to respond to their grievances. Thirteen days after Olson

filed this complaint and his motion for class certification, the

Indiana Department of Correction transferred Olson to a

new facility.

Brown removed this cause of action to federal court

on January 20, 2009. On February 2, 2009, Brown filed his

answer to the complaint. On March 13, 2009, Brown filed his

Motion for Judgment on the Pleadings pursuant to Rule 12(c)

of the Federal Rules of Civil Procedure. The district court

heard oral argument on Olson's Motion for Class

Certification on March 18, 2009, but reserved its ruling on

the class certification issue pending a ruling on Brown's

Motion for Judgment on the Pleadings. On June 23, 2009,

171 days after the initial filing of this cause of action, the

district court granted Brown's motion for Judgment on the

Pleadings holding that Olson's transfer away from TC]

rendered this cause of action moot.

This appeal follows.

II. Discussion

Whether a case 1s moot is a question of law which we

review de novo. Franzont v. Hartmarx Corp., 300 F.3d 767,

771 (7th Cir.2002). A case is moot when "the issues

App. 5

presented are no longer ‘live’ or the parties lack a legally

cognizable interest in the outcome." United States Parole

Commission v. Geraghty, 445 U.S. 388, 396, 100 S.Ct. 1202,

63 L.Ed.2d 479 (1980).

It is without question that this case would be moot if

Olson had brought his claims individually. Olson only sought

injunctive relief and is no longer subject to the conditions

that formed the basis of his complaint. Therefore, the

controversy is resolved in relation to Olson. However, Olson

filed for class certification while he was a party to a live

controversy. This fact would generally not save a cause of

action from becoming moot upon the termination of the

named plaintiff's claims prior to the certification of the class.

However, timely filing for class certification can save acause

of action if it falls within the exception to the mootness

doctrine announced in Gerstein v. Pugh, 420 U.S. 103, 95

S.Ct. 854, 43 L.Ed.2d 54 (1975). The issue before this court

is whether Olson's claim is so "inherently transitory" that it

is uncertain that any member of the class would maintain a

live controversy long enough for a judge to certify a class. If

so, then this case 1s not moot for the purpose of class

certification.

In Gerstein, the Court addressed the issue of class

certification for Florida prisoners seeking a declaratory

judgment that they had a constitutional mght to a probable

cause hearing for pretnal detention. Before reaching the

substantive issues, the Court addressed whether it had

junsdiction to hear the claim. Faced with a situation where

it was likely that none of the named plaintiffs had a live claim

at the time of the class certification decision, the Gerstein

Court specifically addressed the problem of mootness for

App. 6

class claims brought by pre-trial detainees. The Court found

that the case was not moot, reasoning:

At the time the complaint was filed, the

named respondents were members of a class

of persons detained without a judicial

probable cause determination, but the record

does not indicate whether any of them were

still in custody awaiting trial when the

District Court certified the class. Such a

showing ordinanly would be required to avoid

mootness under Sosna. But this case is a

suitable exception to that requirement. The

length of pretrial custody cannot be

ascertained at the outset, and it may be ended

at any time by release on recognizance,

dismissal of the charges, or a guilty plea, as

well as by acquittal or conviction after trial. It

is by no means certain that any given

individual, named as plaintiff, would be in

pretrial custody long enough for a district

judge to certify the class. Moreover, in this

case the constant existence of a class of

persons suffering the depnvation is certain.

The attorney representing the named

respondents 1s a public defender, and we can

safely assume that he has other clients with a

continuing live interest in this case.

420 U.S. at 111, n. 11, 95 S.Ct. 854 (internal citations

omitted). A number of subsequent Supreme Court cases

have reiterated and clarified the exception to the mootness

doctrine announced in Gerstein. See, e.g., Swisher v. Brady,

App. 7

438 U.S. 204, 98 S.Ct. 2699, 57 L.Ed.2d 705 (1978); County

of Riverside v. McLaughlin, 500 U.S. 44, 51-52, 111 S.Ct.

1661, 114 L.Ed.2d 49 (1991). In Swisher, the Court affirmed

a district court's decision to certify a class of juveniles

involved in the juvenile court system despite the fact that

the named plaintiffs claims were moot at the time of the

decision. The Court in Swisher relied on Gerstein's

predecessor, Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42

L.Ed.2d 532 (1975), to find:

There may be cases 1n which the controversy

involving the named plaintiff is such that it

becomes moot as to them before the district

court can reasonably be expected to rule on a

certification motion. In such instances,

whether certification can be said to "relate

back" to the filing of the complaint may

depend on upon the circumstances of the

particular case and especially the reality of

the claim that otherwise the issue would

evade review.

Swisher, 438 U.S. at 213, n. 11, 98S.Ct. 2699. In McLaughlin,

the Court relied on the "inherently transitory" exception to

find, "that the class was not certified unti] after the named

plaintiffs' claims had become moot does not deprive [the

Court] of jurisdiction," in a case challenging the denial of a

prompt probable cause hearing for inmates 1n the county jail.

500 U.S. at 52, 111 S.Ct. 1661.

Although we have yet to apply the Gerstein line of

cases to a case involving jail inmates in this circuit, the

Second Circuit directly addressed this issue in Zuvak v,

App. 8

Regan, 550 F.2d 86 (2d Cir.1977). In Zurak, a class of

inmates at Rikers Island filed suit against the New York

State Board of Parole alleging a violation of their due process

rights regarding their conditional release. 550 F.2d at 90. All

of the class members were Serving a sentence of ninety-days

or more. Jd. At the time the district court certified the class,

all of the named plaintiffs had already been released from

Rikers Island. Jd. The defendants appealed the district

court's ultimate decision on the ments by arguing that the

case was moot at the time of class certification and therefore

the district court acted without proper jurisdiction. Id.

However, the Second Circuit found that this case was not

moot at the time of class certification because it fit squarely

within the exception carved out by Gerstein. /d. The court

reasoned that the exception for inherently transitory claims

applied in this situation because, "the relatively short periods

of incarceration involved and the possibility of conditional

release [created] a significant possibility that any single

named plaintiff would be released pnor to certification,

although this possibility was less substantial than it was in

Gerstein. As in Gerstein, however, the constant existence of

a class of persons suffering the alleged deprivation 1s certain

and the court may safely assume that counsel has other

chents with a continuing live interest in the issues." Jd. at

91-92 (citing Gerstein v. Pugh, 420 U.S. 103, 110 n. 11, 95

S.Ct. 854, 43 L.Ed.2d 54 (1975)).

We agree with the Second Circuit's determination

that the Gerstein line of cases require a claim to meet two

main elements for the ‘inherently transitory" exception to

apply: (1) it is uncertain that a claim will remain live for any

individual who could be named as a plaintiff long enough for

a court to certify the class; and (2) there will be a constant

App. 9

class of persons suffering the deprivation complained of in

the complaint. Gerstein, 420 U.S. at 110 n. 11, 95 S.Ct. 854;

Zurak, 550 F.2d at 91-92. Olson's claim meets both

requirements.

First, based on the stipulated facts, itis uncertain that

any potential named plaintiff in the class of inmates would

have a live claim long enough for a district court to certify a

class. As Gerstein and Zurak both explicitly point out, the

length of incarceration in a county jail generally cannot be

determined at the outset and is subject to a number of

unpredictable factors, thereby making it inherently

transitory. While the ultimate length of confinement does

affect the applicability of the "inherently transitory"

exception, the essence of the exception is uncertainty about

whether a claim will remain alive for any given plaintiff long

enough for a district court to certify the class. In Banks v.

NCAA, 977 F.2d 1081, 1086 (7th Cir.1992) and Trotter v.

Klincar, 748 F.2d 1177 (7th Cir.1984), we specifically

addressed the fact that the crux ofthe "inherently transitory"

exception 1s the uncertainty about the length of time a claim

will remain alive. In both cases we found that the "inherently

transitory" exception did not apply because in both cases the

named plaintiffs knew, from the outset, exactly how long

their claims would remain alive but chose to wait to file for

class certification unt:! the claim was nearly moot or already

moot. In Banks, the plaintiff knew from the outset that his

claim would become moot 120 days from the onset of the

controversy, but he purposefully chose to wait 112 days

before filing his complaint. 977 F.2d at 1086. We relied on

this intentional delay in filing to find that the plaintiff was

precluded from benefitting from the "inherently transitory"

exception to the mootness doctrine. /d. ("Had Banks been

App. 10

diligent in filing his claim shortly after discovering that he

had failed to be selected for the draft or as a free agent, and

still been unable to obtain class certification, he might have

been able to make an argument for the class that he had

standing for the purpose of pursing a ruling on class

certification even though his own individual claim had

become moot."). In Trotter, the named plaintiff had a live

claim for seventy days but never filed for class certification.

The plaintiff still attempted to rely on the "inherently

transitory" exception for class actions when the court ruled

that his case was moot. 748 F.2d at 1184-85. Similar to our

reasoning in Banks, we found that the "inherently transitory"

exception was inapplicable in Tyottery because the plaintiff

knew that his cause of action would soon become moot but

chose not to file for class certification.

Brown attempts to read Banks and Trotter to create

a brnight-line rule that we cannot apply the "inherently

transitory" exception to a claim that has been alive beyond

a given number of days. Brown argues that the "inherently

transitory" exception should not apply here because Olson's

delay in filing this suit is the same as the one hundred and

twenty day delay in Banks and the seventy-day delay in

Trotter. This analogy is misguided in two respects. First, no

such bright-line rule exists. Unlike the plaintiffs in Banks

and Trotter, Olson did not know when his claim would

become moot. The duration of his claim was at the discretion

of the Indiana Department of Correction. An individual

incarcerated in a county jail may be released for a number of

reasons that he cannot anticipate. Olson's transfer by the

Indiana Department of Correction just thirteen days after he

filed for class certification in this suit illustrates one such

unpredictable occurrence that could unexpectedly moot a

App. 11

claim for a county jail inmate. This uncertainty 1s precisely

what makes the "inherently transitory" exception applicable

in this case. Second, because Olson was required to exhaust

his administrative remedies before filing this suit, the period

of time between the first possible day he could file and the

day he actually filed was only fifty-two days-a significantly

shorter period of time than was at issue 1n Banks or Trotter.

The case at bar also meets the second requirement

for the inherently transitory exception-there will be a

constant class of persons suffering the deprivation. Contrary

to Brown's argument, the “inherently transitory" exception

to the mootness doctrine is distinct from the "capable of

repetition yet evading review" exception. When the claim 1s

inherently transitory, as 1t was in Gersteim and as it is 1n this

case, the plaintiff must show that there will likely be a

constant class of persons suffering the deprivation

complained of in the complaint. This is different from when

a plaintiff invokes the "capable of repetition yet evading

review" exception, where the plaintiff must show that the

claim is capable of repetition as to the named plaintiff. A

close reading of United States Parole Commission v. Geraghty,

445 US. 388, 398-99, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980),

makes this distinction clear. In Geraghty, the Court first

acknowledged that a plaintiff must have a reasonable

expectation of being subjected to the offending behavior in

the future to avail himself of the "capable of repetition yet

evading review" exception to the mootness doctrine.

However, the Court then turned to Gerstein and found that

the "inherently transitory" exception does not require any

indication that the named plaintiff would be subject to the

complained-of situation 1n the future but just that the claim

1s capable of repetition. Geraghty, 445 U.S. at 398-99, 100

App. 12

S.Ct. 1202. Our own precedent also supports this distinction.

In Banks, we treated "inherently transitory" and "capable of

repetition yet evading review" as two separate lines of

argument by the plaintiff for why the case was not moot. 977

F.2d at 1085-86.

Because Olson asks this court to apply the

"inherently transitory" exception, not the "capable of

repetition yet evading review" exception, the Supreme

Court's recent holding in Alvarez v. Smith, 588 U.S. ----, 130

S.Ct. 576, --- L.Ed.2d ---- (2009), is not applicable to this

case. In Alvarez, the Court held that the plaintiffs could not

rely on the "capable of repetition yet evading review"

principle to avoid mootness because they could not show

that they were likely to be subjected to the complained-of

state procedures again. Alvayvez, at 581-83. As discussed

above, the "inherently transitory" exception does not require

such a showing. Additionally, the district court in Alvarez

denied the plaintiffs’ motion for class certification. The

plaintiffs never appealed that decision. Significantly, this

case 1s in a different procedural posture. Here, Olson seeks

to keep the claim alive beyond his individual claim to certify

the class. If the district court certifies the class, the case can

proceed to the ments for the certified class of plaintiffs. The

Alvarez plaintiffs, through their inaction 1n response to the

denial of class certification, conceded that their claims should

not extend beyond the life of their individual claims. The

difference in procedural postures of the two cases makes

Alvarez inapplicable to the case at hand.

Since we find that the claim “is of the kind that is

unlikely to be able to certified before it becomes moot," and

thereby meets the first requirement of Gerstein, all Olson

App. 13

must show 1s that the claim is likely to recur with regard to

the class, not that the claim is likely to recur with regard to

him. The pervasive nature of these claims, as evidenced by

the fifty-three affidavits outlining problems similar to those

complained of by Olsen, makes it likely that TCJ's alleged

practices of opening inmates' legal mail, denying inmates

access to the law library, and failing to respond to inmates’

grievances will continue. Therefore, this case meets the

second requirement of the inherently transitory exception.

As a final argument, Brown urges us to affirm the

dismissal of the suit on the ground that it fails to state a

claim for which relief may be sought. However, the district

court did not reach this issue before dismissing the case for

lack of jurisdiction. Therefore, we do not reach the issue of

whether the pleadings state a claim for which relief may be

sought.

Additionally, Olson asks that we address the issue of

class certification. We decline this invitation. A district court

has broad discretion to determine whether certification of a

class action lawsuit is appropnate. Mira v. Nuclear

Measurements Corp., 107 F.3d 466, 474 (7th Cir.1997).

Therefore, we remand to the distnct court to determine

whether class certification is appropriate in this case.

III. Conclusion

For the above stated reasons, we REVERSE the distnict

court's dismissal of the complaint as moot. We REMAND for

consideration of the plaintiffs motion for class certification

and defendant's motion for dismissal for failure to state a

claim.

App. 14

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION AT LAFAYETTE

JEFFREY MARK OLSON, )

on his own behalf and on )

of a class of those similarly )

situated, )

Plaintiffs, )

v. ) No. 4:09-cv-00006

TRACY BROWN, in his official )

capacity as Shenff of Tippecanoe _)

County, )

Defendant,

MEMORANDUM OPINION AND ORDER

This matter is before the Court on the Motion for

Judgment on the Pleadings (Doc. No. 19) filed by Defendant

Tracy Brown ("Shenff Brown") on March 13, 2009, pursuant

to the Federal Rules of Civil Procedure, Rule 12(c), against

Plaintiff Jeffrey Mark Olson ("Mr. Olson" or "Plaintiff’) who

is suing on his own behalf and on behalf of a class of those

similarly situated.

On March 18, 2009, the Court heard oral argument in

South Bend on the pending Motion for Class Certification

under Fed. R. Civ. Pro. 23(a) and (b)(2) (Doc. No. 2). At the

time of the hearing, the Motion for Judgment on the

Pleadings filed on March 13, 2009 (Doc. No. 19) was not yet

ripe. The parties were informed that a ruling on the latter

motion (once mpe) would precede consideration of the class

certification, and no objection was made. Because the issues

raised in both motions overlap, the Court considers the

arguments made in the bnefs for both motions, and the

App. 15

arguments made during the March 18 hearing, to the extent

that they are relevant here. For the reasons that follow,

Shenff Brown's Motion for Judgment on the Pleadings is

GRANTED.

I. Procedural and Factual Background

On January 2, 2009, Mr. Olson filed a "class action

complaint for declaratory and injunctive relief’ to enjoin the

practices of the Tippecanoe County Jail. Mr. Olson sues on

his behalf and on the behalf of "any and all persons currently

confined, or who will in the future be confined, in the

Tippecanoe County Jail." Class Action Complaint, {1 6. On

January 20, 2009, Shenff Brown removed the case from

Tippecanoe County State Court to this Court based upon

federal question jurisdiction.

By way of background, Mr. Olson was sentenced on

or about November 1, 2003, to ten years in the Indiana

Department of Corrections. While pending transfer to a

different facility, he was held at the Tippecanoe County Jail

("the Jail") beginning on August 29, 2008. While at the Jail,

numerous violations of law against him allegedly occurred

primarily in September and October 2008, including the

following claims:

(1) improper handling of legal mail, which was

opened outside the presence of the

addressee/inmate;

(2) providing unreasonable access to the law

library;

(3) improper handling/delayed response (or

no response) to inmate grievances;

App. 16

(4) providing incorrect prescription

medications to inmates;

(5) providing dirty eating utensils and cups to

inmates who are without a means to sanitize

their own utensils;

(6) providing a law library that is out-of-date;

(7) charging excessive charges for medical

visits and medications; and,

(8) charging excessive commissary prices,

including excessive pnices for pre-paid phone

cards.

See Class Action Complaint, pp. 3-11. On November 7, 2008,

Mr. Olson filed a final grievance with the Jail stating:

On October 25, 2008, I submitted a gnevance

due to jail personnel not responding to any

prior grievance. Again, personnel have

ignored my gnevance and failed to reply.

Please reply to my 10-25-08 gnevance. If you

fail, I will not file any more grievances, I will

proceed to the United States District Court.

Please accept this as my appeal of my October

25, 2008, grievance.

See Doc. No. 1-2, Class Action Complaint, p. 8. Almost 2

months later, on January 2, 2009, Plaintiff filed his Class

Action Complaint and a Motion for Class Certification while

he was incarcerated in the Jail. On January 15, 2009, after

being incarcerated at the Jail for over 4 months

(approximately 139 days), yet only 2 weeks after filing the

Class Action Complaint, Mr. Olson was transferred from the

Jail directly to the Indiana Department of Correction. See

App. 17

Doc. No. 16-2, Olson Affidavit, 1 1.

The average length of stay of inmates in the Jail

during the relevant time frame is 139 days. Of those inmates

incarcerated in the Jail on February 20, 2009, 128 inmates

were incarcerated in the Jail for less than 30 days; 119 were

incarcerated in the Jail for between 30 and 90 days; 130 were

incarcerated in the Jail for between 90 and 180 days; 121

were incarcerated in the Jail for between 180 and 365 days;

and 41 were incarcerated in the Jail for more than 365 days.

Defendant Shenff Brown argues that judgment under

Rule 12(c) is proper because:

(1) the Plaintiff has no private mght of action to

enforce jail standards set forth in 210 Ind. Admin. Code

3-1-15 (concerning jail law librames and gnevance

procedures) and set forth in 210 Ind. Admin. Code 3-1-16

(concerning handling of inmate mail from attorneys and the

courts) because these standards are enforced by the Indiana

Department of Corrections;

{2) there is noconstitutional privilege with respect to

mail coming from the courts since they are public documents

and implicate no privacy nght; and, mail from attorneys

where no attorney-client privilege has been claimed is not

constitutionally protected; and/or

(3) Mr. Olson's claims for injunctive relief are moot

because he is no longer incarcerated at the Tippecanoe

County Jail, and was transferred to the Indiana Department

of Corrections on January 15, 2009.

App. 18

IL. Standard of Review

Under Federal Rule of Civil Procedure 12(c), a party

may move for judgment on the pleadings "[a]fter the

pleadings are closed but within such time as not to delay the

trial." A Rule 12(c) motion for judgment on the pleadings is

reviewed "under the same standards as a motion to dismiss

under 12(b). Flenner v. Sheahan, 107 F.3d 459, 461 (7th

Cir.1997); see also Ashcroft v. Iqbal, --- U.S. ----, ----, 129 S.Ct.

1937, 1949, 173 L.Ed.2d 868, ---- (2009) (citing Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 556-70, 127 S.Ct. 1955, 167

L.Ed.2d 929 (2007) (to survive a motion to dismiss, a

complaint must contain sufficient factual matter, accepted as

true, to "state a claim to relief that 1s plausible on its face."));

Limestone Development Corp. v. Village of Lemont, Iil., 520

F.3d 797, 803 (7th Cir.2008) (reasoning that a complaint

must allege facts to state a claim to relief that is plausible on

its face) (citing Bell Atl. Corp.,550 U.S. at 544). A motion for

judgment on the pleadings is properly granted where,

accepting all "well-pleaded allegations in the complaint as

true" and drawing all "reasonable inferences in favor of the

plaintiff," the moving party is entitled to judgment as a

matter of law. Forseth v. Vill. of Sussex, 199 F.3d 363, 368

(7th Cir.2000).

For purposes of Rule 12(c), pleadings include the

complaint, the answer, and any wnitten instruments attached

as exhibits. See Fed.R.Civ.P. 10(c); Northern Indiana Gun &

Outdoor Shows, Inc. v. City of South Bend, 163 F.3d 449,

452-53 (7th Cir.1998) (concluding that the broader

interpretation of “written instrument" comports with the

generous nature in which we view pleadings, and therefore

"written instrument,” as used in Rule 10(c), includes

App. 19

documents such as affidavits) (citing Schnell v. City of

Chicago, 407 F.2d 1084, 1085 (7th Cir.1969), overruled on

other grounds by Crty of Kenosha v. Bruno, 412 U.S. 507, 93

S.Ct. 2222, 37 L.Ed.2d 109 (1973)). But see Rose v. Bartle,

871 F.2d 331, 339-40 n. 3 (3d Cir.1989) (concluding that

affidavits are not written instruments). Rule 10(c) provides

that "[a] copy of any written instrument which ts an exhibit

to a pleading is a part thereof for all purposes." McCready v.

eBay, Inc., 453 F.3d 882, 891 (7th Cir.2006). From this rule,

the Seventh Circuit has concluded "documents attached to

a motion to dismiss are considered part of the pleadings if

they are referred to in the plaintiffs complaint and are

central to his claim." Id. (citations omitted). Based on the

generous nature in which pleadings are viewed, the Court

considers for purposes of this ruling, the stipulation (Doc.

No. 18) and affidavits submitted by Plaintiff and similarly

situated inmates attesting to the alleged violations of their

rights, because these documents are part of the pleadings

where they form the basis of the Complaint and are central

to the claims made therein.

HI. Discussion

The Court begins its analysis where it will soon

end-on the issue of whether Mr. Olson's claims are moot,

and the effect thereof.’ Mr. Olson admits that he is no longer

Mr. Olson's standing to initially sue is uncontested. Mr. Olson satisfied

each of the Article III requirements for standing to sue by alleging an

actual "injury in fact" that is concrete and particularized and 1s fairly

traceable to the challenged action of the defendant and likely to be

redressed by a favorable decision. Arreola v. Godinez, 546 F.3d 788,

794-95 (7th Cir.2008) (stating that "it is best to confine the term

App. 20

an inmate at the Tippecanoe County Jail, but relies on the

relation-back doctrine discussed in Gerstein v. Pugh, 420 U.S.

103, 111 n. 11, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), for his

position that the class action survives and 1s not rendered

moot, because he filed the Complaint and requested class

certification pnor to his transfer from the Jail. See Doc. Nos.

12, 28. While Mr. Olson is correct that inherently transitory

claims may avoid dismissal as a result of mootness, see infra,

he is incorrect in classifying his case as one that meets an

exception to the mootness doctrine.

Because Mr. Olson filed his Complaint while he was

in the Jail, this case is not moot on arrival. See e.g., Holstein

v. City of Chicago, 29 F.3d 1145, 1147 (7th Cir.1994) (noting

that the named plaintiff, who did not move for class

certification pnor to the expiration of his individual claims,

"cannot avail himself of the class action exception to the

mootness doctrine."); Holmes v. Fisher, 854 F.2d 229, 232

(7th Cir.1988) (finding that the case was "dead on arrival,

moot the day the complaint was filed ... there was never a

case or controversy within the meaning of Art. III of the

Constitution" because the plaintiff did not file his suit until

after he was arrested and after he received the hearnng

which he contended arrested persons were entitled).

Instead, Mr. Olson's case became moot upon his transfer

from the Jail on January 15, 2009- after he filed the

‘standing’ to the Article III inquiry and thus to keep it separate from the

plaintiffs entitlement to relief or [the plaintiff's] ability to satisfy the Rule

23 criteria.) (citing Payton v. County of Kane, 308 F.3d 673, 676 (7th

Cir.2002)). Mr. Olson had standing when he filed the Complaint seeking

injunctive relief where he was incarcerated in the Jail experiencing the

alleged unlawful actions of the defendant.

App. 21

Complaint and request for certification on January 2, 2009,

but before the class could be certified.

Under Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42

L.Ed.2d 532 (1975) and United States Parole Commission v.

Geraghty, 445 U.S. 388, 100 S.Ct. 1202, 63 L.Ed.2d 479

(1980), the mootness of a plaintiffs personal claim did not

prevent him from serving as the representative ofa class. In

Sosna, however, the class was certified before the

representative's case became moot, and the Court reasoned

that after certification the class itself was the plaintiff.

Geraghty, which was specifically limited to the appeal of the

denial of the class action motion, held that when the distnct

court denies the plaintiff's motion to certify a class, and the

plaintiff appeals from the denial, 1fhis appeal is pending when

his substantive claim evaporates, then the appeal is not

moot. See also Weismueller v. Kosobucki, 513 F.3d 784, 786

(7th Cir.2008) (citing Depostt Guaranty National Bank v.

Roper, 445 U.S. 326, 335-37, 100 S.Ct. 1166, 63 L.Ed.2d 427

(1980); Geraghty, 445 U.S. at 404)). This is so "because

unless and until the appellate court affirms the denial of the

motion to certify a class, there may be people other than the

plaintiff with a legally protected interest in the suit-namely

the unnamed members of the class." Wezsmueller, 513 F.3d

at 786.

While Mr. Olson did move for class certification prior

to the evaporation of his personal stake, he cannot claim the

benefit of this exception to the mootness doctrine because

this Court did not certify the class in the short time between

the filing of his Complaint and request for class certification,

and his subsequent transfer from the Jail-a mere thirteen

days. The requirement that Mr. Olson's case be dismissed

App. 22

under these circumstances has been made clear by the

Seventh Circuit Court of Appeals. Wetsmueller, 513 F.3d at

786 (If on the other hand, the named plaintiffs claim

becomes moot before the class is certified, the suit must be

dismissed because no one besides the plaintiff has a legally

protected interest in the litigation.”) (citing Board of School

Commissioners v. Jacobs, 420 U.S. 128, 130, 95 S.Ct. 848, 43

L.Ed.2d 74 (1975) (per curiam) (holding that "Because the

class action was never properly certified nor the class

properly identified by the District Court, the judgment of the

Court of Appeals is vacated and the case 1s remanded ... to

vacate [the District Court's] judgment and to dismiss the

complaint”); Bertrand ex rel. Bertrand v. Maram, 495 F.3d

452, 456 (7th Cir.2007) (stating that "if the would-be

representative's claim becomes moot before certification,

then the case must be dismissed)).

However, as argued by Mr. Olson, he may avoid

dismissal because of mootness, if he is able to demonstrate

that his claim on the merits, while no longer live, is "capable

of repetition, yet evading review.” Holstein v. City of Chicago,

29 F.3d 1145, 1147 (7th Cir.1994). To do so, Mr. Olson must

prove that:

1) his claim is "so inherently transitory that

the trial court [did] not have enough time to

rule on a motion for class certification before

the proposed representative's individual

interest expire[d]}," County of Riverside v.

McLaughlin, 500 U.S. 44, 52, 111 S.Ct. 1661,

114 L.Ed.2d 49 (1991) (citations omitted); and

2) he will again be subject to the alleged

illegality, Czty of Los Angeles v. Lyons, 461

App. 23

U.S. 95, 110, 103 S.Ct. 1660, 75 L.Ed.2d 675

(1983). See Robinson v. City of Chicago, 868

F.2d 959, 967 (7th Cir.1989).

Holstein, 29 F.3d at 1147; see also Franks v. Bowman

Transportation Company, 424 U.S. 747, 756 n. 8, 96 S.Ct.

1251, 47 L.Ed.2d 444 (1976) ("Thus, the ‘capable of

repetition, yet evading review' dimension of Sosna must be

understood in the context of mootness as one of the policy

rules often invoked by the Court ‘to avoid passing

prematurely on constitutional questions. Because (such)

rules operate in 'cases confessedly within (the Court's)

jurisdiction’ ... they find their source in policy, rather than

purely constitutional, considerations.") (citations omitted).

The United States Supreme Court has also held that

when a class action 1s sought, the mooting of the plaintiffs

individual claims for relief does not moot the case if, the

plaintiffs individual claims are inherently transitory. In

Gerstein, 420 U.S. at 103, the named plaintiffs filed a class

action challenging pretnal detention conditions. The Court

assumed that the named plaintiffs were no longer awaiting

trial at the time the trial court certified the class of pretrial

detainees. Jd. at 111 n. 11. In addition, there was no

indication that the named plaintiffs might again be subject to

pretrial detention. /d. Nevertheless, the Court held that the

case was not moot:

This case belongs, however, to that narrow

class of cases in which the termination of a

class representative's claim does not moot the

claims of the unnamed members of the class.

See Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553,

App. 24

42 L.Ed.2d 532 (1975). Pretrial detention 1s

by nature temporary, and it is most unlikely

that any given individual could have his

constitutional claim decided on appeal before

he 1s either released or convicted ... This

claim, in short, is one that is distinctly

‘capable of repetition, yet evading review’... It

is by no means certain that any given

individual, named as plaintiff, would be in

pretnal custody long enough for a district

judge to certify the class ...

Gerstein, 420 U.S. at 111, n. 11.

Similarly, 1n County of Riverside v. McLaughlin, 500

U.S. 44, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991), a class action

was brought by arrestees challenging the manner in which

the defendant county provided probable cause

determinations to persons who had been arrested without a

warrant. /d. at 47. At the time the suit was filed, the named

plaintiffs were incarcerated. /d. at 51. However, by the time

the class was certified, their individual claims were moot. Jd.

at 51-52. The Court found that the case itself was not moot

and that the class was properly certified:

That the case was not certified until after the

named plaintiffs’ claims had become moot

does not deprive us of jurisdiction. We

recognized in Gerstein that "[s]ome claims are

so inherently transitory that the tnal court

will not have even enough time to rule on a

motion for class certification before the

proposed representative's individual interest

App. 25

expires."... In such cases, the "relation back"

doctrine is properly invoked to preserve the

merits of the case for judicial resolution.

McLaughlin, 500 U.S. at 52.

Regarding the transitory nature of the claim, Mr.

Olson was incarcerated for over four months, and filed his

last Jail grievance on November 7 requesting a response to

his October 25 grievance. Thereafter, Mr. Olson waited

nearly 2 months (56 days) to file his class action complaint in

federal court. There is no evidence that after not receiving

grievance responses, Mr. Olson was kept from accessing the

Court. Moreover, based on the average length of

incarceration, Mr. Olson is among the approximate 54% of

the inmate population that is incarcerated more than 90 days

in the Jail. In fact, approximately 30% of the inmate

population is incarcerated in the Jail for more than half a

year. Further, Mr. Olson's situation is one unlike those cases

where a court normally will not have even enough time to

rule on a motion for class certification before the proposed

representative's individual interest expires, such as a

challenge presented to pretrial detention, see Gerstein, 420

U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54, or probable cause

determinations for those recently arrested, see McLaughlin,

500 U.S. 44, 111 S.Ct. 1661, 114 L.Ed.2d 49, or intake strip

searches after arrests, see May v. Frisbie, 2009 WL 1148223

(S.D.Ind. Apr.28, 2009). Here, Mr. Olson, like over half the

inmates in the Jail, was incarcerated for over 3 months.

Based on these facts, this Court cannot say that Mi. Olson's

claims are so inherently transitory that he can evade the

mootness doctnne. See Banks v. NCAA, 977 F.2d 1081, 1086

(7th Cir.1992) (reasoning that had plaintiff filed his complaint

App. 26

shortly after discovering the alleged conduct, and still been

unable to obtain class certification, he might have been able

to make an argument that the claim was transitory); Trotter

v. Lincar, 748 F.2d 1177, 1184-85 (7th Cir.1984) (rejecting

a claim that 70 days provided insufficient time to obtain a

ruling on a motion for class certification).

Although this is enough to dismiss Mr. Olson's

complaint, the Court also finds that it is not likely that Mr.

Olson will be subject to the Jail's procedures in the future.

See Holmes v. Fisher, 854 F.2d 229, 232 (7th Cir.1988)

(finding that the "capable of repetition but evading review"

doctrine applies only when repetition is likely to embroil the

same parties to the dispute) (citations omitted). The mere

physical or theoretical possibility of Mr. Olson being

incarcerated at the Jail and suffering the alleged wrongful

acts of the defendants is insufficient to satisfy this prong.

Holstein, 29 F.3d at 1148 (citing Jones v. Sullivan, 938 F.2d

801, 806 (7th Cir.1991)). Instead, there must be a

"reasonable expectation" or a "demonstrable probability" that

the same controversy will recur involving the same parties.

Id. (citing Jones, 938 F.2d at 807) (quoting Murphy v. Hunt,

455 U.S. 478, 482, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982)).

Mr. Olson cannot make such a showing.

Mr. Olson's case cannot be classified as transitory or

capable of repetition but evading review-certainly a given

inmate at the Jail, named as plaintiff, could be, and in fact has

been most recently, incarcerated long enough for a district

judge to certify a class. See Arreola v. Godinez, 546 F.3d 788,

799 (7th Cir.2008) ("[W]e 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

App. 27

[the plaintiffs} arguments, this case is not a good candidate

for application of the ‘capable of repetition, yet evading

review' concept.") (citation omitted). As aresult, Mr. Olson's

claim is moot.

IV. Conclusion

For the reasons stated herein, the Court GRANTS

Defendant Shenff Brown's Motion For Judgment on the

Pleadings (Docket No. 19), as this case is deemed moot and

is dismissed without prejudice. Each party to bear its own

costs.

SO ORDERED.

DATED: June 22, 2009

/s/Allen Sharp

ALLEN SHARP, JUDGE

UNITED STATES DISTRICT COURT