# Opposition Brief — Brown v. Olson

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2010
- **Citation:** 561 U.S. 1007

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1920%3A2. Public record. Not legal advice.