Opposition Brief — Brown v. Olson

Supreme Court, U.S.

THE ED

No. 09-1316 MAY 18 2010

OFFICE OF ime CLERK

In The

Supreme Court of the Anited States

TRACY BROWN,

Petitioner,

JEFFREY MARK OLSON,

Respondent.

e—

On Petition For A Writ Of Certiorari

To The United States Court Of Appeais

For The Seventh Circuit

BRIEF IN OPPOSITION

GAVIN M. ROSE

Counsel of Record

KENNETH J. FALK

ACLU OF INDIANA

1031 E. Washington St.

Indianapolis, IN 46202

Ph: 317/635.4059, x106

Fax: 317/635.4105

grose@aclu-in.org

COCKLE LAW BRIEF PRINTING CU. (800) 225-6454

OR CALL COLLECT (402) 342 ZB

QUESTION PRESENTED

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

Court established a limited exception to the mootness

doctrine for claims brought on behalf of a putative

class of similarly situated individuals whereby the

case is deemed justiciable notwithstanding the moot-

ing of the named plaintiff’s individual claims when

(a) “it is by no means certain that any given indi-

vidual, named as plaintiff, would be in pretrial

custody long enough for the district court to certify

the class,” and (b) “the constant existence of a class of

persons suffering the [alleged] deprivation is certain.”

Id. at 111 n.11. This “inherently transitory” exception

to traditional Article III standing, which requires a

fact-based and case-specific analysis, has been re-

peatedly reaffirmed by this Court and faithfully

applied by the lower courts. The question presented

is:

Whether the Seventh Circuit properly applied

the “inherently transitory” exception to the mootness

doctrine to a putative class action brought on behalf

of a named plaintiff seeking declaratory and in-

junctive relief who was unexpectedly transferred

away from Tippecanoe County Jail — and whose in-

dividual claims were thereby rendered moot — when

(a) the district court held the plaintiff’s class motion

under advisement for a lengthier period of time than

the plaintiff’s entire stay in the jail, (b) the period of

time that the claims of any individual named as

il

QUESTION PRESENTED - Continued

plaintiff would remain extant cannot be known at the

outset of litigation, (c) nearly fifty percent (50%) of all

inmates are incarcerated at the jail for less than

three (3) months, (d) each member of the putative

class is subject to release at a moment’s notice, and

(e) *t is undisputed that a constant class of persons

suffering the alleged deprivations at issue in this case

remains in existence.

111

TABLE OF CONTENTS

Page

QUESTION PRESEN LS oiivccsccescncisscsecnessenenceasssess ]

ye RS) Gy yk 4 ig | >. See nen mre iv

INTRODUCTION ........... kia Sednovanseressusyaeomee raters 1

SLATEMENT OF THE CABE...........0ccccccssscoassosecess

REASONS FOR DENYING THE PETITION ....... 3

I. The Seventh Circuit faithfully applied this

Court’s precedents in rendering the fact-

specific determination that this case meets

the “inherently transitory” exception to the

PROOLINOEE CODEIIIIG on. os oc cse cc ecccsccsccssdvscevnncaevess 4

II. There is no conflict amongst the circuits

regarding the application of the “inherently

transitory” exception, and the Sheriff’s

attempt to create one reveals only the

common-sense conclusion that the applica-

tion of this Court’s clear and unequivecal

test will result in different outc: mes when

invoked in different factual settings........... 11

CPs RIE ciscsnssanveinuvacwinis enter nencichocusnucntuacaies uae 17

iV

TABLE OF AUTHORITIES

Page

CASES

-ranyo vu. Ward, 103 F.R.D. 638 (S.D.N-Y.

Beli v. Wolfieh, 441 U.S. $20 (1979)... ..cc0ssescscssevecsses 16

Board of Sch. Comm’rs of City of Indianapolis

v. Jacobs, 420 U.S. 128 (1975) (per curiam)........... 10

Clay v. Miller, 626 F.2d 345 (4th Cir. 1980)............... 16

Coleman v. Stanziani, 570 F.Supp. 679 (E.D.

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

MI cde ceases sock tsa otc teases neste tached ous sereisiee es 4

Cruz v. Farquharson, 252 F.3d 530 (1st Cir.

ET Fis enslesunnccc de tela doneesas datiadata tcc mien aeaheeraaeed 12,13

Cruz v. Hauck, 627 F.2d 710 (5th Cir. 1980)........ 15, 16

Deposit Guar. Nat'l Bank v. Roper, 445 U.S.

Be ross talaatis Satta sense eee 10, 1l

Dillard v. Pitchess, 399 F.Supp. 1225 (C.D. Cal.

fc) SRR eeu FP TC CPO nie CRON ToT ee

Faheem-El v. Klincar, 600 F.Supp. 1029 (N.D.

Be sot ens ete eee eased uae 5

Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147

IIR ie csicdecce cons ycrckcascassteenee ees elatecicia ek eee 9

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

Green v. Johnson, 513 F.Supp. 965 (D. Mass.

TABLE OF AUTHORITIES — Continued

Page

Holmes v. Fisher, 854 F.2d 229 (7th Cir. 1988).......... 13

Inmates of Lincoln Intake & Detention Ctr. v.

Boosalis, 705 F.2d 1021 (8th Cir. 1983).................. 14

Jane B. v. New York City Dep't of Soc. Servs.,

117 F-.R.D. 64 (S.D.N.Y. 1987)........... SEIS ees Ate ore.

Jones v. Diamond, 519 F.2d 1090 (5th Cir.

| RSE, ONES dN AAR) sot Pe LOU EGE Iat 0 REE ee De ODO ae 4

Kazarev v. Achim, No. 02-C-5097, 2003 WL

22956006 (N.D. Ill. Dec. 12, ZOOS)...........ccccccccsonccceese 5

McGill v. Parsons, 532 F.2d 484 (5th Cir. 1976).......... 4

Marcera v. Chinlund, 565 F.2d 253 (2d Cir.

Ee ia hcsaitecevecedesensnsteesesvanvnuiaanedeiencapenss 4

Mudd v. Busse. 68 F.R.D. 522 (N.D. Ind. 1975),

on reconsideration on other grounds, 437

F.Supp. 505 (N.D. Ind. 1977), aff’d, 582 F.2d

cc cc oencdnisuceusansesanunnepiun nines 5

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

Richardson v. Monroe County Sheriff, No. 1:08-

CV-0174, 2008 WL 3084766 (S.D. Ind. Aug. 4,

erates eect tanarscnaa ta ceecece olivaentid saeee acrataes 4

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

Swisher v. Brady, 438 U.S. 204 (1976) ........... eee 4,6

Tucker v. City of Montgomery Bd. of Comm’rs,

410 F.Supp. 494 (M.D. Ala. 1976)....................c00ee0000D

U.S. Parole Comm’n v. Geraghty, 445 U.S. 388

CRs causa vasa vue algwiente pees aaonava 10, 13, 16

Vi

TABLE OF AUTHORITIES — Continued

Page

Vandehey v. Vallario, No. 06-CV-01405, 2008

WL 697428 (D. Colo. Mar. 13, 2008)......................... 4

Waae v. Kirkland, 118 F.3d 667 (9th Cir. 1997) ..... 13, 14

Weinstein v. Bradford, 423 U.S. 147 (1975)......0..0.... 10

Zurak v. Regan, 550 F.2d 86 (2d Cir. 1977) ................. 4

STATUTES

Be, BE i vsvnsesiccpeseasansovsenovsnnccacscsoeseaspeoesass 12

OTHER AUTHORITIES

Thomas E. Willging et al., An Empirical Analy-

sis of Rule 23 to Address the Rulemaking

Challenges, 71 N.Y.U. L. REV. 74 (1996) .................. 7

INTRODUCTION

The petitioner avers repeatedly that the Seventh

Circuit misapplied this Court’s precedents estab-

lishing an “inherently transitory” exception to the

mootness doctrine. This is not true, and the peti-

tioner’s purported circuit split reflects only the

common-sense notion that differing facts viewed

under the same legal test may yield different results.

Plenary review by this Court is not justified, and the

petition should therefore be denied.

*

STATEMENT OF THE CASE

On January 2, 2009, while still incarcerated in

the Tippecanoe County Jail, Jeffrey Mark Olson filed

his Class Action Complaint for Declaratory and In-

junctive Relief, in which he challenges four (4) alleged

practices or policies of the Sheriff as violative of the

United States Constitution and Indiana law. The

plaintiff’s Motion for Class Certification was filed

contemporaneously with his complaint.

Thirteen (13) days after the filing of his com-

plaint, and while his class motion remained pending,

the plaintiff was transferred away from the jail to the

Indiana Department of Correction. The Sheriff

thereafter sought dismissal of the plaintiff’s claims,

arguing that his transfer rendered the case moot. The

district court agreed. While the court acknowledged

that “when a class action is sought, the mooting of the

plaintiff’s individual claims for relief does not moot

2

the case if[] the plaintiff’s individual claims are

inherently transitory” (App. 23), it nonetheless held

that two (2) facts rendered the present case ineligible

for this exception: first, the plaintiff filed his last

grievance appeal nearly two (2) months before seek-

ing redress in court; and second, slightly more than

half of the population of the Tippecanoe County Jail

is incarcerated for more than 90 days, and approxi-

mately 30% of the inmate population is incarcerated

for more than half a year (App. 25).

On appeal, the Seventh Circuit reversed. This

Court’s precedents, said the court,

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 would be

named as plaintiff long enough for a court to

certify the class; and (2) there will be a con-

stant class of persons suffering the depriva-

tion complained of in the complaint.

(App. 8-9). The court noted the relatively brief dura-

tion of confinement at the jail and, addressing the

first element, concluded that “based on the stipulated

facts, it is uncertain that any potential named plain-

tiff in the class of inmates would have a live claim

long enough for the district court to certify the class”

(App. 9). Dispensing with the notion that a bright-line

rule exists whereby the “inherently transitory” na-

ture of a claim may be gleaned from the number of

days a plaintiff’s claims were extant, the court drew

specific attention to the fact that the duration of Mr.

3

Olson’s claims were “at the discretion of the Indiana

Department of Correction.” Said the court: “An indi

vidual incarcerated in a county jail may be released

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

uncertainty is precisely what makes the ‘inherently

transitory’ exception applicable in this case” (App. 10-

11). Addressing the second element that must be met

for a plaintiff to benefit from the “inherently transi-

tory” exception, the court noted that “(t]he pervasive

nature of these claims, as evidenced by the fifty-three

affidavits outlining problems similar to those com-

plained of by Olson, make it likely that [the jail’s]

alleged practices ... will continue” (App. 13).

*

REASONS FOR DENYING THE PETITION

The Sheriff advances two (2) primary arguments

in support of his petition. First, he argues that the

Seventh Circuit impermissibly expanded the “inher-

ently transitory” exception to the mootness doctrine

by applying that exception to a case in which the

class’s claims are only potentially transitory; and

second, he insists that the circuit courts have experi-

enced difficulty in applying the unequivocal com-

mands of Gerstein v. Pugh, 420 U.S. 103 (1975), and

its progeny. However, the former argument is be-

trayed by the plain language of Gerstein, and the

latter is erroneous as a factual matter. Nothing in

this case warrants this Court’s review, and the

petition should therefore be denied.

I. The Seventh Circuit faithfully applied this

Court’s precedents in rendering the fact-

specific determination that this case meets

the “inherently transitory” exception to

the mootness doctrine.

In Gerstein, this Court developed the “inherently

transitory” exception to the mootness doctrine —

which is applied to cases where class membership is

characterized by such brevity that a district court

cannot reasonably be expected to rule on a class

motion before the expiration of any plaintiff’s indi-

vidual claim — in the context of an action brought by a

class of county jail inmates. 420 U.S. at 111 n.11. This

Court subsequently applied this exception in the

context of a policy permitting judicial review of excep-

tions to masters’ proposed findings of nondelinquency,

see Swisher v. Brady, 438 U.S. 204, 213 n.11 (1976),

and in the context of an allegedly impermissible delay

in the provision of probable cause hearings, see

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

(1991). With near universality, the lower courts have

recognized that the claims of county jail inmates are

of such inherently brief duration that prosecuting an

action for injunctive relief would become nearly

impossible absent the Gerstein doctrine.' The Seventh

' See, e.g., Marcera v. Chinlund, 565 F.2d 253, 255 (2d Cir.

1977) (per curiam); Zurak v. Regan, 550 F.2d 86, 91-92 (2d Cir.

1977); McGill v. Parsons, 532 F.2d 484, 488 & n.5 (5th Cir. 1976);

Jones v. Diamond, 519 F.2d 1090, 1097-99 (5th Cir. 1975);

Richardson v. Monroe County Sheriff, No. 1:08-CV-0174, 2008

WL 3084766, at *3 (S.D. Ind. Aug. 4, 2008); Vandehey v. Vallario,

(Continued on following page)

5

Circuit - which had before it both specific facts con-

cerning the average duration of an inmate’s incar-

ceration at Tippecanoe County Jail and specific facts

concerning the named plaintiff’s stay at the jail —

thus faithfully and unsurprisingly applied this doc-

trine to the case at bar.

In arguing that the Seventh Circuit impermis-

sibly expanded the inherently transitory exception

of Gerstein and its progeny, see Pet. 5-7, the Sheriff

asserts that that court erred in “focus[ing] on the

uncertainty faced by any particular claimant at the

outset” of the case rather than “examining generically

the duration of the type of class claim asserted by the

plaintiff.” Pet. 6. Of course, this argument — to the

extent that it is anything other than an argument

over semantics — is foreclosed by the plain language

of Gerstein itself, which directs that the focal point of

an inherently transitory claim be this very un-

certainty:

No. 06-CV-01405, 2008 WL 697428, at *10-11 (D. Colo. Mar. 13,

2008); Kazarov v. Achim, No. 02-C-5097, 2003 WL 22956006, at

*3 (N.D. Ill. Dec. 12, 2003); Jane B. v. New York City Deptt of

Soc. Servs., 117 F.R.D. 64, 67-69 (S.D.N.Y. 1987); Faheem-El v.

Klincar, 600 F.Supp. 1029, 1035 (N.D. Ill. 1985); Arrango v.

Ward, 103 F.R.D. 638, 639-40 (S.D.N.Y. 1984); Coleman ov.

Stanziani, 570 F.Supp. 679, 682 & n.2 (E.D. Pa. 1983); Green v.

Johnson, 513 F.Supp. 965, 974-75 (D. Mass. 1981); Tucker v. City

of Montgomery Bd. of Comm’rs, 410 F.Supp. 494, 501-02 (M.D.

Ala. 1976); Dillard v. Pitchess, 399 F.Supp. 1225, 1226 (C.D. Cal.

1975); Mudd v. Busse, 68 F.R.D. 522, 532 (N.D. Ind. 1975), on

reconsideration on other grounds, 437 F.Supp. 505 (N.D. Ind.

1977), aff’d, 582 F.2d 1283 (7th Cir. 1978).

6

The length of pretrial custody cannot be

ascertained at the outset, and it may be

ended at any time by release on recogni-

zance, dismissal of the charges, or a guilty

plea, as well as by acquittal or conviction

after trial. Jt is by no means certain that any

given individual, named as plaintiff, would

be in pretrial custody long enough for a

district court to certify the class.

Gerstein, 420 U.S. at 111 n.11 (emphasis added). This

holding can also be garnered from this Court’s appli-

cation of the Gerstein doctrine to the plaintiffs’ claims

in Swisher, 438 U.S. at 213 n.11 (“Here the rapidity of

judicial review of exceptions to masters’ proposals

creates mootness questions with respect to named

plaintiffs, and even perhaps with respect to a series of

intervening plaintiffs appearing thereafter, ‘before

the district court can reasonably be expected to rule

on a certification motion.’”) (quoting Sosna v. Iowa,

419 U.S. 393, 402 n.11 (1975)).

In neither Gerstein nor Swisher did the apparent

dearth of evidence concerning the length of a claim’s

viability present any roadblock to the invocation of

the inherently transitory exception by this Court. To

the contrary, the proper focal point is (a) on whether

the duration that any individual’s claim will remain

extant “can[] be ascertained at the outset” of litiga-

tion and (b) on whether it is likely that the class will

not be certified before any individual’s claims are ren-

dered moot. Gerstein, 420 U.S. at 111 n.11; see also

Olson v. Brown, 594 F.3d 577, 582 (7th Cir. 2010).

7

Given that approximately half of the inmates of

Tippecanoe County Jail do not remain in the jail for

longer than three (3) months and that uncertainty

naturally exists as to which inmates will remain in-

carcerated for lengthier periods of time, this case

represents the paradigmatic instance in which the

application of the Gerstein doctrine is appropriate.”

Moreover, the Sheriff’s assertion that the Sev-

enth Circuit “analyzled!} a particular individual’s

claim instead of the [class’s] claim generally,” see Pet.

7-11, is belied by that court’s decision itseli. In deter-

mining that the claims in the present case were eligi-

ble for the benefit of the inherently transitory excep-

tion, the Seventh Circuit repeatedly referenced the

nature of the class as a whole, and its decision was in

no way limited by Mr. Olson’s particular circum-

stances. See Olson, 594 E.3d at 582 (“First, based on

the stipulated facts, it is uncertain that any potential

plaintiff in the class of inmates would have a live

claim long enough for a district court to certify a

class.”) (emphasis added); rd. at 583 (“An individual

* Tellingly, an empirical study conducted during the 1990s

revealed that, ir four (4) federal district courts, the median time

for ruling on a class motion ranged from 2.8 months in one

district to 8.5 months in another. Thomas E. Willging et al., An

Empirical Analysis of Rule 23 to Address the Rulemaking

Challenges, 71 N.Y.U. L. Rev. 74, 102 (1996). More than a

quarter of decisions on class motions were issued after the pas-

sage of 7.6 months following their filing in the most efficient of

the four (4) districts; in the least efficient, a quarter of decisions

were still not rendered 15.8 -nonths following the filing of the

class motion. Jd.

8

incarcerated in a county jail may be released for a

number of reasons that he cannot anticipate.”); td. at

584 (“[Wle find that the claim is of the kind that

is unlikely to be able to be certified before it be-

comes moot.”) (internal quotation omitted) (emphasis

added).

The Sheriff thus ignores entirely the common-

sense notion that the application of the inherently

transitory exception to particular circumstances

presents a fact-specific inquiry that was faithfully un-

dertaken in this case. Indeed, his argument simul-

taneously encourages the resort to litigation without

adequate factual or legal investigation and would

make eminently more difficult the prosecution of any

claim challenging conditions of confinement in the

county jail setting. On the one hand, the short thirty-

nine (39) day delay between the named plaintiff’s

exhaustion of the grievance system on November 24,

2008, and the filing of a complaint on January 2,

2009, can easily be explained by the need for the

plaintiff to recruit counsel and the need for counsel to

engage in proper investigation. And on the other, to

* The Seventh Circuit concluded thai “the period of time

between the first possible day {the plaintiff] could file and the

day he actually filed was only fifty-two days.” Olson, 594 F.3d at

593. This conclusion was erroneous, and takes into consideration

the thirteen-day period within which the plaintiff’s individual

claim was live after his complaint was filed. It is undisputed

that Mr. Olson’s last grievance appeal was filed on November

7th, and that this grievance was nut deemed denied pursuant to

the grievance policy of the Tippecanoe County Jail until fifteen

(Continued on following page)

9

the extent that Gerstein demands an examination of

the likelihood that the claims of any individual will

remain extant “long enough for a district court to

certify the class,” 420 U.S. at 111 n.11, the presenta-

tion of a contested class motion to the district court in

a form that is mpe for adjudication oftentimes re-

quires significant briefing or time-consuming dis-

covery addressed to the class issue that would be

undertaken only beneath the specter of any named

plaintiff’s impending release.’

Of course, the two (2) “main elements” that the

Seventh Circuit focused on “for the ‘inherently

transitory exception to apply,” see Olson, 594 F.3d at

582 — that it be uncertain that the claim of any

individual will remain live long enough for a ruling

on class certification, and that there exist a constant

class of persons suffering the alleged deprivations —

(15) days later, or on November 24th (November 22nd was a

Saturday). The period of time between November 24th and the

date on which the plaintiff’s complaint was filed — January 2nd

—is only thirty-nine (39) days.

* In the present case, for instance, given that the Sheriff

denied the existence of any of the practices or policies challenged

in the complaint, the plaintiff was required — over the Sheriff’s

opposition — to obtain leave of court to contact the unnamed

members of the class, a process that resulted in the submission

of numerous affidavits attesting to the existence of the

challenged policies. See Olson, 594 F.3d at 584; cf Gen. Tel. Co.

of Sw. v. Falcon, 457 U.S. 147, 157-58 (1982) (holding that a

plaintiff must establish the existence of a class of similarly

situated persons rather than rely only on the allegations in his

complaint).

10

are those that are explicit in Gerstein itself. The

Sheriff’s purported “expansion” of the Gerstein doc-

trine is thus not an expansion of that doctrine but

simply an acknowledgment that the facts of any

particular case may yield different results under this

Court’s established test. The Seventh Circuit faith-

fully applied this Court’s precedents in determining

that the plaintiff could reap the benefit of the in-

herently transitory exception to mootness, and the

fact that the Sheriff is not satisfied with that court’s

proper application of Gerstein and its progeny does

not yield an issue worthy of certiorari.’

* Given that neither case concerned the inherently transi-

tory exception to mootness, the Sheriff’s reliance on Weinstein v.

Bradford, 423 U.S. 147 (1975), and Board of School

Commissioners of City of indianapolis v. Jacobs, 420 U.S. 128

(1975) (per curiam), Pet. 9, is both confusing and inar,o9site. In

each of these cases, this Court concluded only that < class was

never properly certified — and the class issue was not pressed on

appeal —- and thus the mooting of the named plaintiffs’ claims

rendered the cases as a whole moot. Weinstein, 423 U.S. at 147-

49; Jacobs, 420 U.S. at 129-30. Moreover, the Sheriff’s pur-

ported “[e]Jroding of the case or controversy requirement,”

notwithstanding this Court’s repeated affirmation of Gerstein’s

exception to the mootness doctrine, relies only on dissenting

opinions in cases not concerning the exception at issue in this

case: the right of a since-moot plaintiff te press the denial

of class certification on appeal, see U.S. Parole Comm’n v.

Geraghty, 445 U.S. 388, 412-13 (1980) (Powell, J., joined by

Burger, C.J., and Stewart and Rehnquist, JJ., dissenting); and

the ability of a class action defendant to intentionally render a

case moot by tendering to the named plaintiffs the maximum

they could have recovered on their individual claims, see Deposit

(Continued on following page)

11

II. There is no conflict amongst the circuits

regarding the application of the “inherently

transitory” exception, and the Sheriff’s at-

tempt to create one reveals only the common-

sense conclusion that the application of

this Court’s clear and unequivocal test will

result in different outcomes when invoked

in different factual settings.

The Sheriff’s attempt to drum up a circuit split

where none exists, see Pet. 12-19, necessarily fails. No

court has questioned the clear command of Gerstein

and its progeny, nor have the lower courts experi-

enced any difficulty applying this Court’s established

test (a fact attested to additionally by the relative

dearth of circuit court opinions addressing the in-

herently transitory exception). Indeed, the decisions

relied upon by the Sheriff from the First, Fifth,

Eighth, and Ninth Circuits stand only for the unsur-

prising proposition that the evaluation of the transi-

tory nature of any claim must be resolved by resort to

the facts of the case as presented to the court. This

was acknowledged by the Seventh Circuit in the

present case, which e~plicitly noted that its determi-

nation was “based on the stipulated facts.” Olson, 594

F.3d at 582.

The First Circuit, for instance, determined that a

putative class actior. in which the plaintiffs challenged

Guar. Nat’l Bank v. Roper, 445 U.S. 326, 353 (1980) (Powell, J.,

joined by Stewart, J., dissenting). Pet. 9.

12

delays in the processing of petitions for permanent

residence was ineligible for the benefit of the inher-

ently transitory exception simply because there was

no showing “that the generic types of claims that they

seek to pursue are likely to evade review.” Cruz uv.

Farquharson, 252 F.3d 530, 535 (1st Cir. 2001).°

Indeed, the claims of the named plaintiffs themselves

were live for more than twenty-two (22) months be-

fore they sought judicial redress — a far cry from the

thirty-nine (39) days within which the present plain-

tiff could have brought suit — and the plaintiffs’

allegations that their petitions were processed only to

evade review “constitute[{d] too frail a foundation to

support th[is] conclusion.” Jd. Although the Sheriff

attempts to find relevance in the First Circuit’s re-

quirement that a plaintiff “show that the claims gen-

erally could not be expected to endure long enough for

a district to rule on a motion for class certification,”

° Of the cases relied upon by the Sheriff to establish a

circuit split, Cruz is the only one that post-dates the enactment

of the Prison Litigation Reform Act of 1997. To the extent that

the fact-specific manner in which the transitory nature of any

claim is affected by the ability of an inmate-plaintiff to have

brought suit earlier than he did, see Olson, 594 F.3d at 593

(scrutinizing “the period of time between the first possibie day

[the plaintiff] could file [his lawsuit} and the day he actually

filed”), this analysis is clearly affected by the present inability of

such a plaintiff to bring his action prior to the exhaustion of a

jail’s internal grievance system — a process that may take

several weeks, a month, or more. See 42 U.S.C. § 1997e(a). In

that manner, the Sheriff’s repeated reference to the 139-day

window within which an average inmate of the Tippecanoe

County Jail might file suit is misleading.

13

Pet. 15, this is the precise requirement announced by

the Seventh Circuit in this case and the precise

requirement established by Gerstein. The fact that

the plaintiffs in Cruz failed to meet their factua!

predicate does not in any way inhibit the application

of the inherently transitory exception in a case where

that predicate has been met.’

The Sheriff’s reliance on the Ninth Circuit’s

decision in Wade v. Kirkland, 118 F.3d 667 (9th Cir.

1997), suffers from a similar fallacy. In that case, the

named plaintiff’s claims were rendered moot while

his class motion was pending, and the district court

thereafter denied the class motion as “premature”

and subsequently dismissed the case as moot. Id. at

669. Noting first that the plaintiff could press the

class issue on appeal notwithstanding the dismissal

of the underlying complaint pursuant to this Court’s

decision in U.S. Parole Comm’n vu. Geraghty, 445 U.S.

388, 404 (1980), the Ninth Circuit concluded only that

" The Sheriff’s reliance on the First Circuit’s decision in

Cruz in order to create a purported circuit split is inapposite for

another reason. Throughout the present litigation, neither party

has contested that for a plaintiff to benefit from the inherently

transitory exception to mootness a named plaintiff must file his

complaint and his class motion prior to the expiration of his

individual claims. If this is not accomplished, the case is “dead

on arrivai, moot the day the complaint was filed.” Holmes v.

Fisher, 854 F.2d 229, 232 (7th Cir. 1988). However, in Cruz the

individual claims of the named plaintiffs were rendered moot

approximately ten (10) weeks before class certification was even

sought. 252 F.3d at 532-33. As such, the plaintiffs were ineligible

for the benefit of the Gerstein doctrine in the first place.

14

the district court was required to evaluate the propri-

ety of applying the inherently transitory exception to

mootness before dismissing the case altogether. The

court’s subsequent remand to the district court to

cure the fact that “the record ... is devoid of any

evidence” concerning the transitory nature of the

plaintiff’s claims, 118 F.3d at 670 — that is, to estab-

lish the factual predicate that the Seventh Circuit

found present in this case — is of course a far cry from

the circuit split that the Sheriff insists is present.°

The Erghth Circuit case relied upon by the

Sheriff does not stand, as the Sheriff insists, for the

broad proposition that a case involving both pretrial

detainees and convicted inmates does not qualify for

the inherently transitory exception. Rather, the only

flaw noted by that court was that the named

plaintiffs had “failed to present evidence thet the ...

proposed class claims are ‘capable »f repetition, yet

evading review.” Inmates of Lincoln Intake &

* The Sheriff reads Kirkland as establishing the rule that

“it Lis} up to the district court, not the circuit court, to determine

whether a claim [is] ‘inherently transitory’ within the meaning

of Gerstein.” Pet. 17. However, remanding a case to the district

court for the development of a factual record and for the

opportunity to render a decision on a previously passed-upon

issue in the first instance — as the Ninth Circuit did — does not

obviate the well-established principle that after a district court

issues such a determination mo»!ness questions predicated on

undisputed facts are reviewed by appellate courts de novo.

Kirkland, 118 F.3d at 669 (“Mootness is a question of law re-

viewed de novo.”); see also Olson, 594 F.3d at 580 (“Whether a

”

case is moot is a question of law which we review de novo.”).

15

Detention Ctr. v. Boosalis, 705 F.2d 1021, 1024 (8th

Cir. 1983); see also td. at 1024 n.2 (“There has been no

showing in the case before us of a similar obstacle to

class certification.”) (emphasis added). Moreover, the

Sheriff’s bright-line distinction between “pretrial

detainees” and “convicted inmates” is non-existent in

the case at bar, where even those class-members who

have been convicted of their crimes are simply await-

ing transfer to another facility (and the concomitant

mooting of their individual claims). See Olson, 594

F.3d at 583 (The plaintiff’s “transfer by the Indiana

Department of Correction ... illustrates one such un-

predictable occurrence that could unexpectedly moot

a claim for a county jail inmate.”).

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

the Fifth Circuit similarly evaluated the facts of the

plaintiff’s claim and refused to apply the inherently

transitory exception because “(uJnlike the named

plaintiffs in Gerstein, [the plaintiff] is challenging

conditions of long-term, not short-term, confinement.”

Id. at 870. That is obviously not the case presently,

and the Sheriff’s insistence that a circuit split exists

simply because the same test applied to independent

factual backdrops produces different results is with-

out merit. Indeed, the Fifth Circuit in Rocky explicitly

distinguished the case before it — in which a pro se

plaintiff challenged the conditions of long-term con-

finement — with a case challenging conditions of con-

finement in a county jail. See id. at 870 n.5 (citing

Cruz v. Hauck, 627 F.2d 710 (5th Cir. 1980)). After all,

“confinement in a jail is by nature temporary.” Hauck,

16

627 F.2d at 716; see also Bell v. Wolfish, 441 U.S. 520,

526 & n.5 (1979) (describing “the temporary nature of

confinement at [a county jail],” even when the jail

served to house “pretrial detainees and sentenced

prisoners alike”).”

In Gerstein and its progeny, this Court has

spoken with a clear voice. Over the past thirty-five

(35) years, the lower courts have applied the resul-

tant doctrine faithfully. The mere fact that courts in

some cases found the inherently transitory exception

to mootness applicable while courts in other cases

have not bespeaks not a circuit split but the nature of

litigation: differing facts viewed under the same legal

lens will oftentimes yield different results. Certiorari

is not warranted in this case.

+

* The Sheriff’s reliance on the Fourth Circuit’s decision in

Clay v. Miller, 626 F.2d 345 (4th Cir. 1980), to establish a circuit

split is even more far-fetched. In that case, the district court

denied class certification and the issue was not pressed on

appeal. Under Geraghty, this fact aione warranted the dismissal

of the plaintiff’s injunctive claim. 445 U.S. at 404 (“A named

plaintiff whose claim expires may not continue to press the

appeal on the merits until a class has been properly certified.”).

17

CONCLUSION

The petition should therefore be denied.

Respectfully submitted,

GAVIN M. ROSE

Counsel of Record

KENNETH J. FALK

ACLU oF INDIANA

1031 E. Washington St.

Indianapolis, IN 46202

Ph: 317/635.4059, x106

Fax: 317/635.4105

grose@aclu-in.org