543 F.3d 597 (10th Cir. 2008), 06-1454, Shook v. Board of County Commissioners of County of El Paso

Docket Nº:06-1454.
Citation:543 F.3d 597
Party Name:Mark SHOOK and Dennis Jones, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, and James Vaughan; Shirlen Mosby; Thomas Reinig; and Lottie Elliott, Intervenors-Plaintiffs-Appellants, v. The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF EL PASO and Terry Maketa, in his official capacity as Sheriff of El Paso County,
Case Date:August 29, 2008
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 597

543 F.3d 597 (10th Cir. 2008)

Mark SHOOK and Dennis Jones, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants,


James Vaughan; Shirlen Mosby; Thomas Reinig; and Lottie Elliott, Intervenors-Plaintiffs-Appellants,


The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF EL PASO and Terry Maketa, in his official capacity as Sheriff of El Paso County, Defendants-Appellees.

The Judge David L. Bazelon Center for Mental Health Law; Center for Children's Law and Policy; Colorado Center on Law and Policy; Colorado Cross-Disability Coalition; Colorado Lawyers Committee for Civil Rights; The Legal Center for People with Disabilities and Older People; National Center for Youth Law; National Disability Rights Network; National Senior Citizens Law Center; Public Justice; Colorado Counties, Inc., Amici Curiae.

No. 06-1454.

United States Court of Appeals, Tenth Circuit.

August 29, 2008

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Mark Silverstein, Legal Director, American Civil Liberties Foundation of Colorado, Denver, CO (David C. Fathi, National Prison Project for the ACLU Foundation, Inc., Washington, D.C., and Thomas S. Nichols, Davis Graham & Stubbs LLP, Denver, CO, with him on the briefs), for Plaintiffs-Appellants.

Gordon L. Vaughan, Vaughan & DeMuro (Sara Ludke Cook, Vaughan & DeMuro, and Jay A. Lauer, County Attorney of El Paso County, with him on the brief), Colorado Springs, CO, for Defendants-Appellees.

Thomas J. Lyons and Andrew D. Ringel, Hall & Evans, L.L.C., Denver, CO, for Amicus Curiae Colorado Counties, Inc.

Laura L. Rovner, Student Law Office, and Stephen Arvin, Stephanie Whalum and Margaret Yoder, Student Attorneys, University of Denver Sturm College of Law, Denver, CO, for Amici Curiae.

Before TYMKOVICH, GORSUCH, and HOLMES, Circuit Judges.

GORSUCH, Circuit Judge.

Plaintiffs Mark Shook and Dennis Jones, along with several intervenors, appear before us for the second time to contest the district court's denial of their motion to certify a class action consisting of all present and future mentally ill inmates at Colorado's El Paso County Jail. In their first appeal, we held that in denying class certification the district court erred by relying on the jurisdictional limitations imposed by the Prison Litigation Reform Act (“ PLRA" ) to the total exclusion of the standards laid out in Federal Rule of Civil Procedure 23. The difficulty with the district court's opinion, in our view, was that it conflated a merits analysis of the relief available to plaintiffs-relief potentially curtailed by the PLRA-with the threshold class certification requirements of Rule 23-which are not affected by the PLRA. On remand, the district court again denied class certification, but did so this time with reference to Rule 23's strictures. We find that the district court's analysis of the Rule 23 framework is free of the legal errors we identified in its first effort, and although we might reach a different conclusion were we addressing the certification question in the first instance, we are unable to say that the district court abused its discretion in declining to certify the proposed class under Rule 23(b)(2).


Filed pursuant to 42 U.S.C. § 1983, plaintiffs' suit seeks declaratory and injunctive relief aimed at addressing a variety of conditions at the Jail alleged to violate the Eighth Amendment's ban against cruel and unusual treatment, as incorporated against the states through the Fourteenth Amendment. Among other things, these alleged conditions include inadequate mental health care; insufficient protections against self-inflicted injuries and suicides; inadequate methods of distributing medication to inmates and screening for mental health issues at the time inmates are committed to the Jail; and the improper and overly broad use of special detention cells, restraints, and pepper spray against inmates. Aplt.App. at 198-99.

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Plaintiffs offer allegations about their own treatment at the Jail and claim their treatment fairly represents the treatment class members generally receive at the Jail. The nature of their individual conditions and treatment, however, also serves to illustrate the range of the alleged mental health care issues at the Jail. For example, Mark Shook suffers from both Asperberger's Syndrome and bipolar disorder. Prior to his incarceration at the Jail in 2001, Mr. Shook regularly took anti-psychotic medications prescribed by his psychiatrist. After being confined to the Jail, Mr. Shook alleges that he was denied access to his medications and medical care for three weeks. Shirlen Mosby, while suffering from mental illnesses similar to Mr. Shook, experiences suicidal tendencies apparently not shared by him. She alleges that her problems at the Jail stemmed, not from the failure to provide her with her medications, but from a failure to monitor her for potentially suicidal behavior.

Thomas Reinig, who is bipolar with schizoaffective disorder and is also a paranoid schizophrenic, alleges yet a different set of violations by the Jail. Specifically, Mr. Reinig complains that he was confined in a special detention cell multiple times, sometimes while restrained with handcuffs and leg irons. Apparently unlike any of the other plaintiffs, he has also been subjected to electric shocks from a taser on several occasions, and in other instances has been threatened with similar treatment. Notably, although he has prescriptions for a variety of medications and has been listed as a suicide risk, Mr. Reinig does not appear to allege that he was denied his medications or inadequately supervised.

Finally, Lottie Elliott's allegations cut across the groups before us, alleging denial and improper administration of prescription medication and improper supervision in light of her suicidal tendencies, but also adding an allegation of inadequate access to mental health professionals at the Jail itself. Ms. Elliott arrived at the Jail after spending three days on the psychiatric ward at St. Francis Hospital after a suicide attempt. While at the hospital, a psychiatrist saw Ms. Elliott daily and prescribed an anti-psychotic medication called Seroquel, to be taken morning, night, and “ as needed." Despite being released into the care of the Jail with this prescription in hand, medical staff at the Jail changed Ms. Elliott's medications without consulting her or warning her of any possible side effects, and without allowing her to see a psychiatrist or physician despite her request. Eventually, Ms. Elliott attempted suicide, and only after that attempt did the Jail's psychiatrist meet with her.1

In due course after bringing this suit, plaintiffs moved for class certification while defendants moved to dismiss the complaint. The district court ultimately denied both motions. With respect to the former, the district court denied class certification without providing any analysis of the factors relevant to class certification set forth in Fed.R.Civ.P. 23. Instead, the court focused entirely on the PLRA, reasoning that the relief plaintiffs sought was beyond its jurisdictional competence after the passage of the PLRA and that class certification is properly denied when the court lacks “ the authority to order the prospective remedy requested."

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Shook v. Bd. of County Comm'rs of County of El Paso, 216 F.R.D. 644, 647 (D.Colo.2003). We reversed. Noting that “ [t]he text of the PLRA says nothing about the certification of class actions," though it does contain provisions discussing the administration of class actions once certified, we held that “ the PLRA does not alter the class certification analysis under Rule 23." Shook v. El Paso County, 386 F.3d 963, 970 (10th Cir.2004) (“ Shook I" ). And because the PLRA left the traditional Rule 23 class certification standards intact, we held that the district court, which had neither analyzed Rule 23(a)'s factors nor mentioned Rule 23(b)(2), “ erred by not specifically addressing the traditional Rule 23 factors in denying class certification." Id. at 972. We thus remanded for the district court to apply the Rule 23 framework in the first instance. Id. at 974. Furthermore, recognizing that courts have disagreed over whether manageability, an explicit consideration under Rule 23(b)(3), may be considered in determining whether to certify a class pursuant to Rule 23(b)(2), we proceeded to hold that “ manageability is not categorically barred in Rule 23(b)(2) class certification decisions," id. at 973, and we suggested that some of the “ concerns leading the court to consider problems of identifying and managing the class" in its PLRA analysis might be relevant to considerations explicitly identified in Rule 23 itself, such as, inter alia, Rule 23(a)'s commonality or typicality requirements or Rule 23(b)'s requirements that defendants have acted “ on grounds generally applicable to the class" and that the court be able “ to provide injunctive relief to the class framed in the complaint," id. at 973-74.

Before the district court again, plaintiffs renewed their motion for class certification pursuant to Rule 23(a) and (b)(2), proposing a class comprised of “ [a]ll persons with serious mental health needs who are now, or in the future will be, confined in the El Paso County Jail." Aplt.App. at 193. Alternatively, plaintiffs proposed an even broader class consisting of “ all persons who are now, or in the future will be, confined in the El Paso County Jail." Id. In their prayer for relief, plaintiffs sought an injunction establishing standards across a wide range of areas affecting mentally ill inmates. They asked that the Jail be enjoined to “ provide sufficient numbers of mental health and custody staff...

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