Nelsen v. King County

• Decision Date: 09 February 1990
• Docket Number: No. 87-4411,87-4411
• Citation: 895 F.2d 1248
• Parties: Ronald O. NELSEN; Michael Bullene, Plaintiffs-Appellants, v. KING COUNTY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1248

895 F.2d 1248

15 Fed.R.Serv.3d 1322

Ronald O. NELSEN; Michael Bullene, Plaintiffs-Appellants, v. KING COUNTY, Defendant-Appellee.

No. 87-4411.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 3, 1989.

Decided Feb. 9, 1990.

Roger M. Leed, Seattle, Wash., for plaintiffs-appellants.

Norm K. Maleng, King County Pros. Atty. by James L. Brewer, Sr. Deputy Pros. Atty., and Mary F. Perry, Deputy Pros. Atty., Seattle, Wash., for defendant-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before WALLACE, PREGERSON and ALARCON, Circuit Judges.

WALLACE, Circuit Judge:

Nelsen and Bullene, former residents of the Cedar Hills Alcoholic Treatment Center (Center), appeal from the district court's refusal of class certification and denial of injunctive relief. The district court held that Nelsen and Bullene did not possess standing to seek injunctive relief individually or on behalf of a class. The district court had jurisdiction pursuant to 42 U.S.C. Sec. 1983. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. Sec. 1292(a)(1). We affirm.

I

Following the commission of alcohol-related offenses, Nelsen and Bullene chose, in lieu of prison, to undergo treatment in the Center, which is owned and operated by King County. Nelsen resided in the Center from April 2 to May 30, 1985. Bullene resided in the Center from September 26 to November 24, 1986.

On August 25, 1986, Nelsen and Sharp, another former resident of the Center (who is not involved in this appeal), filed suit in the district court under 42 U.S.C. Sec. 1983, seeking injunctive relief and damages for alleged violations of their constitutional rights during their stays in the Center. The substance of their complaint focused on the allegedly unsanitary conditions created by a landfill located next to the Center. Nelsen and Sharp sought monetary damages for the alleged violation of their rights and an injunction to relocate the Center in an area away from the landfill.

On December 29, 1986, Nelsen and Sharp filed a motion to certify a class consisting of "[a]ll persons who have been resident patients at the [Center] for a period beginning three years prior to the filing of this action, and also all persons who shall in the future be patients, whether involuntarily committed or not." On March 16, 1987, Nelsen and Sharp filed a second amended complaint, containing new allegations regarding the adequacy of the treatment they received at the Center and adding Bullene as a plaintiff. Neither Nelsen nor Bullene were residing in the Center during the time that they were parties to the lawsuit. Their claims of standing are thus predicated upon the supposition that they will at some point return to the Center.

The district court denied Nelsen and Bullene's motion for class certification, and dismissed their claims for injunctive relief. The district court reasoned that certification of the class pursuant to Fed.R.Civ.P. 23(b)(2) was improper because Nelsen and Bullene lacked standing to assert claims for injunctive relief and because such claims were moot. Thus, all that remained were the claims of Nelsen and Bullene for monetary damages, which the court held did not suffice for class certification.

We review the district court's denial of class certification for an abuse of discretion. Siles v. ILGWU National Retirement Fund, 783 F.2d 923, 926 (9th Cir.1986). In order to decide whether the district court abused its discretion, we must determine whether the court applied the proper legal criteria. Hatch v. Reliance Insurance Co., 758 F.2d 409, 416 (9th Cir.), cert. denied, 474 U.S. 1021, 106 S.Ct. 571, 88 L.Ed.2d 555 (1985). We review the district court's decision on standing de novo. LaDuke v. Nelson, 762 F.2d 1318, 1322 (9th Cir.1985) (LaDuke ).

II

Standing "is a jurisdictional element that must be satisfied prior to class certification." Id. at 1325. "A litigant must be a member of the class he or she seeks to represent at the time the class action is certified by the district court." Sosna v. Iowa, 419 U.S. 393, 403, 95 S.Ct. 553, 559, 42 L.Ed.2d 532 (1975) (Sosna ). This, in turn, requires the litigant to "establish[ ] the requisite of a case or controversy with the defendants." O'Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1974) (O'Shea ). If the litigant fails to establish standing, he may not "seek relief on behalf of himself or any other member of the class." Id.

The district court, relying primarily upon City of Los Angeles v. Lyons, 461 U.S. 95, 101, 103 S.Ct. 1660, 1664, 75 L.Ed.2d 675 (1983) (Lyons ), concluded that Nelsen and Bullene lacked standing to claim injunctive relief because they "failed to make a reasonable showing that they will again be subjected to the allegedly harmful conditions at the [Center]." Nelsen and Bullene dispute this conclusion, claiming that they presented evidence that there was a "demonstrated possibility" they would again be subjected to the alleged privations in the Center.

While it is generally acknowledged that the threat of future harm may confer standing on a litigant, the degree of threat that is required has never been precisely articulated. As we recognized in Sample v. Johnson, 771 F.2d 1335, 1340 (9th Cir.1985) (Sample ):

There has been scant analysis of what must be shown to establish that a plaintiff will likely be injured again. The Supreme Court has stated that plaintiffs must demonstrate that a "credible threat" exists that they will again be subject to the specific injury for which they seek injunctive or declaratory relief. Kolender v. Lawson, 461 U.S. 352, 355 n. 3 [103 S.Ct. 1855, 1857 n. 3, 75 L.Ed.2d 903] (1983). A reasonable showing of a "sufficient likelihood" that the plaintiff will be injured again is necessary. Lyons, 461 U.S. at 108, 111 . The "mere physical or theoretical possibility" of a challenged action again affecting the plaintiff is not sufficient. Murphy v. Hunt, 455 U.S. 478, 482 [102 S.Ct. 1181, 1183, 71 L.Ed.2d 353] (1982).... There must be a "demonstrated probability" that the plaintiff will again be among those injured.

(Citations partially omitted.) Whether the standard employed is defined as "credible threat," "sufficient likelihood," or "demonstrated probability," our analysis is assisted by a few basic principles that serve to guide our inquiry.

First, the interest required of a litigant to attain standing is essentially the same as the interest required to maintain a claim under the mootness doctrine. See United States Parole Commission v. Geraghty, 445 U.S. 388, 397, 100 S.Ct. 1202, 1209, 63 L.Ed.2d 479 (1980) (" 'The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness),' "), quoting Monaghan, Constitutional Adjudication: The Who and When, 82 Yale L.J. 1363, 1384 (1973); Sample, 771 F.2d at 1339.

Second, regardless of how the test is characterized, our analysis cannot be reduced to considering probability merely in terms of quantitative percentages. As we explained in Sample, "[t]he cases have ... not indicated what degree of probability is required where a plaintiff can show a likely recurrence of injury.... [W]e prefer to describe 'probability' qualitatively, as requiring a very significant possibility, and not quantitatively, as mandating a 'greater than fifty percent' likelihood." 771 F.2d at 1343. In Sample, we concluded that the statistical probability that a plaintiff would be harmed simply because he "had returned to work in a hazardous profession" could not confer standing since the "level of generality" at which such a showing was made was "insufficient to establish that serious injury will probably recur to [the plaintiff]." Id. Thus, under Sample, what a plaintiff must show is not a probabilistic estimate that the general circumstances to which the plaintiff is subject may produce future harm, but rather an individualized showing that there is "a very significant possibility" that the future harm will ensue. Id.; see also id. at 1339 ("The question ... is whether the practices to which the plaintiffs object are capable of repetition as to them.") (emphasis in original).

Third, we have recognized that there is a trend towards imposing tighter restrictions on claims of standing for injunctive claims predicated upon allegedly recurrent injuries. In Sample, we stated that in the mid-1970's "commentators could argue with some authority that judicial economy or the importance of the question presented may outweigh the need for anything more than the 'mere possibility' that the plaintiff had a continuing personal stake in securing injunctive or declaratory relief." Id. at 1342. Yet by the mid-1980's, a trend towards stricter standing requirements in this context had clearly emerged: "Cases such as Lyons and LaDuke make it clear that, no matter how important the issue or how likely that a similar action will be brought, a court is without jurisdiction if there is not a sufficient likelihood of recurrence with respect to the party now before it." Id. (citations omitted).

Fourth, the Supreme Court has concluded that past exposure to harm is largely irrelevant when analyzing claims of standing for injunctive relief that are predicated upon threats of future harm. In O'Shea, the Court considered a challenge to the standing of named plaintiffs who alleged that various officials in Cairo, Illinois were systematically engaged in practices that violated their civil rights and the rights of members of their class. 414 U.S. at 491, 94 S.Ct. at 673. In a situation virtually identical to the one before us, the Court observed that "[n]either the complainant nor respondents' counsel suggested that any of the named plaintiffs at the time the complaint was filed were themselves serving an allegedly illegal sentence or were on trial or awaiting trial before petitioners....