# Petition for Writ of Certiorari — Brown v. Olson

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2010
- **Citation:** 561 U.S. 1007

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1920%3A1. Public record. Not legal advice.