594 F.3d 1188 (10th Cir. 2010), 09-5093, DG ex rel. Stricklin v. Devaughn

Docket Nº:09-5093.
Citation:594 F.3d 1188
Opinion Judge:BALDOCK, Circuit Judge.
Party Name:DG, by Next Friend G. Gail STRICKLIN; CS, by Next Friend Barbara Sears; JB, by Next Friend Buddy Faye Foster; AP, by Next Friend Leslie A. Ellis Kissinger; JA, by Next Friend Buddy Faye Foster; JP, by Next Friend G. Gail Stricklin; RJ, by Next Friend Paul Naylor; GC, by Next Friend Anne Sublett; KT, by Next Friend Barbara Sears, for themselves and
Attorney:Marcia Robinson Lowry, Children's Rights, New York, N.Y. (Frederic Dorwart and Paul DeMuro, Frederic Dorwart Lawyers, Tulsa, OK, and R. Thomas Seymour and Scott A. Graham, Seymour & Graham, LLP, Tulsa OK, and Bruce W. Day and Joe E. Edwards, Day, Edwards, Propester & Christensen, Oklahoma City, O...
Judge Panel:Before HOLMES, BALDOCK, and SILER, Circuit Judges.
Case Date:February 08, 2010
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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594 F.3d 1188 (10th Cir. 2010)

DG, by Next Friend G. Gail STRICKLIN; CS, by Next Friend Barbara Sears; JB, by Next Friend Buddy Faye Foster; AP, by Next Friend Leslie A. Ellis Kissinger; JA, by Next Friend Buddy Faye Foster; JP, by Next Friend G. Gail Stricklin; RJ, by Next Friend Paul Naylor; GC, by Next Friend Anne Sublett; KT, by Next Friend Barbara Sears, for themselves and those similarly situated, Plaintiffs-Appellees,

v.

Richard L. DEVAUGHN, in his official capacity as Chairman of the Oklahoma Commission for Human Services; Ronald L. Mercer, in his official capacity as Vice-Chairman of the Oklahoma Commission for Human Services; Jay Dee Chase; Patrick Dills Douglas; Michael L. Peck; Geroldine Webb; Aneta F. Wilkinson; George E. Young, Sr., in their official capacities as members of the Oklahoma Commission for Human Services; Howard Hendrick, in his official capacity as Director of the Department of Human Services, Defendants-Appellants.

White Fields, Inc.; Oklahoma Baptist Homes for Children; Oklahoma United Methodist Circle of Care; Sand Springs Children's Home; American Legion Children's Home; Peppers Ranch, Inc.; Oklahoma Lions Boys Ranch; Goodland Academy, Movants.

No. 09-5093.

United States Court of Appeals, Tenth Circuit.

February 8, 2010

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Marcia Robinson Lowry, Children's Rights, New York, N.Y. (Frederic Dorwart and Paul DeMuro, Frederic Dorwart Lawyers, Tulsa, OK, and R. Thomas Seymour and Scott A. Graham, Seymour & Graham, LLP, Tulsa OK, and Bruce W. Day and Joe E. Edwards, Day, Edwards, Propester & Christensen, Oklahoma City, OK, with her on the briefs) for Plaintiffs-Appellants.

Donald M. Bingham, Riggs, Abney, Neal, Turpen, Orbison & Lewis, P.C., Tulsa, OK (Holly M. Hillerman, Riggs, Abney, Neal, Turpen, Orbison & Lewis, P.C., Tulsa, OK, and Robert A. Nance and Melvin C. Hall, Riggs, Abney, Neal, Turpen, Orbison & Lewis, P.C., Oklahoma City, OK, with him on the briefs) for Defendants-Appellees.

Before HOLMES, BALDOCK, and SILER,[*] Circuit Judges.

BALDOCK, Circuit Judge.

Nine Oklahoma foster children (" Named Plaintiffs" ), acting through their next friends, filed suit under 42 U.S.C. § 1983 against members of the Oklahoma Commission for Human Services and the Director of the Oklahoma Department of Human Services (" OKDHS" ) in their official capacities, seeking declaratory and injunctive relief. The Oklahoma Commission for Human Services is the body responsible for formulating the policies and adopting the rules and regulations for the administration of the OKDHS. In their complaint, Named Plaintiffs sought certification of a class of all children who are or will be in the legal custody of OKDHS due to a report or suspicion of abuse or neglect or who are or will be adjudicated deprived due to abuse or neglect-approximately 10,000 children. Named Plaintiffs allege OKDHS's agency-wide foster care policies and practices expose all class members to an impermissible risk of harm, violating

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their Fourteenth Amendment right to substantive due process, their Fifth and Fourteenth Amendment rights to procedural due process, and their liberty and privacy interests guaranteed by the First, Ninth and Fourteenth Amendments. Specifically, Named Plaintiffs assert OKDHS's agency-wide deficiencies include: (1) failing to protect class members from abuse and neglect while in OKDHS custody; (2) failing to protect class members from abuse or neglect by their biological parents while in OKDHS custody; (3) assigning excessive caseloads to its child welfare caseworkers and supervisors; (4) engaging in dangerous monitoring and oversight practices; (5) placing class members in unsafe and overcrowded emergency shelters; (6) placing class members in unsafe foster homes as a result of failing to develop sufficient numbers of safe placements; (7) maintaining policies and practices that deny class members opportunities to develop critical family relationships; and (8) maintaining policies and practices that subject class members to harmful moves among multiple inappropriate homes and facilities.

When Named Plaintiffs filed their complaint seeking class certification in February 2008, the parties did not have the benefit of our decisions in Shook v. Board of County Commissioners, 543 F.3d 597 (10th Cir.2008) ( " Shook II " ), and Vallario v. Vandehey, 554 F.3d 1259 (10th Cir.2009), which explain the proper standards for class certification when plaintiffs seek injunctive relief. In light of Shook II, the district court allowed Named Plaintiffs to supplement their motion for class certification by submitting a statement of relief sought and then ordered both parties to submit briefs addressing whether a class action seeking the relief requested by Named Plaintiffs would satisfy the requirements of Federal Rules of Civil Procedure 23(a), 23(b)(2), and 65(d) as explained in Shook II.

After reviewing Named Plaintiffs' nine alleged common questions of fact, five alleged common questions of law, and seven requested remedies, as well as both parties' supplemental briefs, the district court certified the proposed class. The district court found the proposed class met Rule 23(a)(1)'s numerosity requirement and Rule 23(a)(4)'s adequacy of class representation requirement. Neither party disputes the class meets those requirements. The district court also explained in a thorough and careful order that at least one question of fact and one question of law were common to the class, satisfying Rule 23(a)'s commonality requirement. Based on the evidence submitted by the parties, the district court concluded " [w]hether [OK]DHS has a policy or practice of failing to adequately monitor the safety of class members causing significant harm and risk of harm to their safety, health and wellbeing" presents an issue of fact common to the entire class. According to the court, this common question of fact raised one common issue of law: " [W]hether [OK]DHS's policies or practices violate class members' right to be reasonably free from harm and imminent risk of harm while in state custody." The court then concluded because Named Plaintiffs' claims are typical of the class's claims and Named Plaintiffs' claims are not significantly antagonistic to the class, the class satisfied Rule 23(a)'s typicality requirement. Finally, the court determined at least two of Named Plaintiffs' proposed remedies-(1) an injunction setting limits on the caseloads of caseworkers and their supervisors assigned to the class based on Council on Accreditation (COA) and Child Welfare League of America (CWLA) standards and (2) an injunction requiring caseworkers to visit all children in OKDHS custody as frequently as set forth under COA and CWLA standards-satisfy Rule 23(b)(2) and 65(d)'s requirements as explained in Shook II.

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We granted Defendants' timely request for permission to file an interlocutory appeal of the district court's order granting class certification. Defendants argue the district court abused its discretion by erroneously finding the proposed class satisfied Rule 23(a)'s commonality and typicality requirements. They also assert the district court erred in concluding the proposed class satisfied Rule 23(b)(2)'s " generally applicable" and cohesiveness requirements. Exercising jurisdiction under 28 U.S.C. § 1292(e) and Fed.R.Civ.P. 23(f), we find no abuse of discretion and affirm the district court's order.

" We review the standard the district court used in making its Rule 23 determination de novo and the merits of that determination for an abuse of discretion." Vallario v. Vandehey, 554 F.3d 1259, 1264 (10th Cir.2009); see also Shook v. El Paso County, 386 F.3d 963, 967 (10th Cir.2004) (" Shook I " ). Recognizing the considerable discretion the district court enjoys in this area, we defer to the district court's certification ruling if it applies the proper Rule 23 standard and its " decision falls within the bounds of rationally available choices given the facts and law involved in the matter at hand." Vallario, 554 F.3d at 1264. We reverse for an abuse of discretion when the district court bases its decision on either a clearly erroneous finding of fact or conclusion of law or by manifesting a clear error of judgment. Id.

I.

" ‘ In determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met.’ " Shook I, 386 F.3d at 971 (quoting Anderson v. City of Albuquerque, 690 F.2d 796, 799 (10th Cir.1982)). A district court may certify a class if the proposed class satisfies the requirements of Rule 23(a) and the requirements of one of the types of classes in Rule 23(b). The party seeking class certification bears the burden of proving Rule 23's requirements are satisfied. Shook I, 386 F.3d at 968. In deciding...

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