DeGidio v. Perpich
| Decision Date | 12 June 1985 |
| Docket Number | Civ. No. 4-84-352. |
| Citation | 612 F. Supp. 1383 |
| Parties | Anthony DeGIDIO, James Murray, Antti John Haavisto, Anthony DeGidio, Sr., individually and on behalf of all others similarly situated, Plaintiffs, v. Rudy PERPICH, individually and as Governor of the State of Minnesota, Orville B. Pung, individually and as Corrections Commissioner of the State of Minnesota, Robert Erickson, individually and as Warden of the Minnesota Prison at Stillwater, Dr. James Allen, individually and as Medical Director of the Minnesota State Prison at Stillwater, Sister Mary Madonna Ashton, individually and as Commissioner of Health, Defendants. |
| Court | U.S. District Court — District of Minnesota |
Terence J. McCloskey, Kevin Shea and Robert Kircher, Johnson, Sands, Lizee, Fricker & McCloskey, Minneapolis, Minn., for plaintiffs.
Richard D. Hodsdon, Sp. Asst. Atty. Gen., St. Paul, Minn., for defendants Rudy Perpich, Orville B. Pung, Robert Erickson, and Sister Mary Madonna Ashton.
Audrey Zimmerman, Geraghty, O'Loughlin & Kenney, St. Paul, Minn., for defendant Dr. James Allen.
Plaintiffs, Anthony DeGidio, et al., brought this action for compensatory and punitive damages and injunctive relief, against Rudy Perpich, Governor of Minnesota; Orville Pung, Corrections Commissioner of Minnesota; Robert Erickson, Warden of the Minnesota Correctional Facility at Stillwater (Stillwater); Sister Mary Madonna Ashton, Commissioner of Health of Minnesota; and the State of Minnesota. Plaintiffs allege that the defendants failed to provide Stillwater inmates with adequate medical care to treat tuberculosis and to prevent its spread to prisoners or visitors. Jurisdiction is alleged under 28 U.S.C. §§ 1343(a)(3) and (4), and 42 U.S.C. § 1983. By order dated October 10, 1984, this court dismissed the State of Minnesota from the action. The matter is now before the court upon the motion of defendants Perpich, Pung, Ashton, and Erickson for dismissal, or alternatively, for summary judgment. Plaintiffs have filed a motion for partial declaratory judgment, and a motion for leave to amend their complaint and for class certification.
Three of the four named plaintiffs — DeGidio, Jr., Haavisto and Murray — are inmates or former inmates of Stillwater who contracted tuberculosis. They allege that defendants subjected them to cruel and unusual punishment in violation of the Eighth Amendment by failing to protect them from exposure to tuberculosis and provide adequate treatment.1 They also allege negligent diagnosis, treatment and failure to segregate affected inmates, as well as intentional mistreatment, in violation of Minn.Stat. §§ 243.57, 144.651 and 609.23. Further, plaintiffs allege that DeGidio, Sr. contracted tuberculosis from his regular visits to his son. They seek to certify a class of former, current and future inmates at Stillwater who have contracted tuberculosis and have been in the past or may be in the future "intentionally and/or negligently mistreated, obviously neglected, misinformed, fraudulently misrepresented, and/or intentionally and/or negligently deprived of necessary and adequate medical care, including diagnosis, prognosis, and treatment while incarcerated therein." Plaintiffs' Second Amended Complaint. They also seek to certify a subclass of visitors and other members of the public who have come into contact with infected inmates and contracted the disease. Following hearing on this matter the court requested and received additional briefing on the issue of the import of Hines v. Anderson, 439 F.Supp. 12 (D.Minn.1977), for this case.
Plaintiffs contend that their proposed class and subclass meet the prerequisites of Fed.R.Civ.P. 23(a). They argue that 160 prisoners are suspected to have contracted tuberculosis, that many of these people are located in various Minnesota prisons or throughout the nation and that a class action will enable indigent litigants to redress their grievances. Plaintiffs argue that common questions of fact and law exist among the potential class members and that the requirements of Fed.R.Civ.P. 23(b)(1), (2) or (3) are met.
Defendants, by contrast, claim that plaintiffs' proposed class and subclass are undefinable and conditional and fail to meet the requirements of numerosity and commonality of law or facts.2 They argue that each person in the proposed class presents unique and individual problems of treatment and that class members would have an inherent conflict because some infected others. Defendants also submit that plaintiffs have not met the requirements of Fed. R.Civ.P. 23(b). Moreover, defendants assert that to the extent the action seeks injunctive relief, the motion for class certification is superfluous because a class has already been created in prior litigation concerning the provision of health care to inmates at Stillwater. See Hines v. Anderson, 439 F.Supp. 12 (D.Minn.1977).
Fed.R.Civ.P. 23(a) requires that the parties seeking to proceed as a class must demonstrate that:
1) the class is so numerous that joinder is impracticable, 2) there are questions of law or fact common to the class, 3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and 4) the representative parties will fairly and adequately protect the interests of the class.
Where a class is divided into subclasses, these requirements apply to each subclass. Fed.R.Civ.P. 23(c)(4)(B); Betts v. Reliable Collection Agency Ltd., 659 F.2d 1000, 1004-1005 (9th Cir.1981); Johnson v. American Credit Company of Georgia, 581 F.2d 526, 532 (5th Cir.1978). The burden is upon those seeking class certification to prove that all such requirements have been met. See Thompson v. Sun Oil Co., 523 F.2d 647, 649 (8th Cir.1975); Taylor v. Safeway Stores, 524 F.2d 263, 270 (10th Cir.1975). Once the prerequisites of Fed.R.Civ.P. 23(a) have been met, the proposed class must establish that there is an additional basis under Rule 23(b) to proceed with a class action.
In the instant case, plaintiffs have failed to show that their proposed subclass of visitors meets the numerosity requirement. Review of the pleadings to date reveals that only one person claims to have contracted tuberculosis as a result of visiting an inmate at Stillwater. Speculation about others who may have been infected is not enough to satisfy plaintiffs' burden. Certification as to the subclass of visitors is therefore denied.
Plaintiffs have, however, fulfilled the requirements of Fed.R.Civ.P. 23(a) concerning the proposed class of prisoners. They claim that approximately 160 inmates have contracted tuberculosis at Stillwater and have submitted approximately 19 affidavits of such individuals. Plaintiffs have also submitted an administrative chart regarding Mantoux testing at Stillwater showing that on February 13, 1984, a total of 89 inmates were shown to be positive converters. In 19 of these cases, plaintiffs have received copies of medical records from Stillwater which verify the Mantoux testing. Considering this showing and the latency period of tuberculosis, the court finds that enough plaintiffs are involved to make joinder impracticable.
Plaintiffs have also shown that common questions of fact arise since the potential class members are or were inmates of Stillwater who were infected with tuberculosis by defendants' allegedly inadequate treatment procedures. Common questions of law concern the standard of care required of the defendants and whether they breached any duty in a way which deprived plaintiffs of their civil rights. Similarly, plaintiffs have demonstrated that the claims of the named representatives are typical of the class and that their counsel is experienced and able to conduct the proposed litigation.
In addition, the court finds that plaintiffs' proceeding is maintainable under Fed. R.Civ.P. 23(b)(2) which provides:
The party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.
Here, plaintiffs claim that defendants violated their Eighth Amendment rights by refusing to follow the necessary procedures to treat and prevent the spread of tuberculosis. They seek an order enjoining defendants to provide adequate treatment to those with positive tuberculosis and to protect others by a quarantine or other measures.
Plaintiffs also are seeking a substantial sum of money, over $40 million in damages. Such an amount cannot be labeled "incidental" to the injunctive relief plaintiffs seek. Moreover, it appears that each plaintiff must individually show causation between his injury and misconduct by defendants, as well as prove the amount of ensuing damages. Accordingly, under Fed.R.Civ.P. 23(c)(4)(A), the court will confine the class action to those issues pertaining to the alleged constitutional violation and injunctive relief.3 Thus, individuals will be required to present evidence of causation and their particular damages separately. See, Denberg v. U.S. Railroad Retirement Bd., 696 F.2d 1193, 1207 n. 8 (7th Cir.1983), cert. denied, ___ U.S. ___, 104 S.Ct. 1706, 80 L.Ed.2d 180 (1984); Hill v. Western Elec. Co., 672 F.2d 381 (4th Cir.1982), cert. denied, 459 U.S. 981, 103 S.Ct. 318, 74 L.Ed.2d 294 (1982). See also 7A Wright & Miller, Federal Practice and Procedure: Civil § 1790 (1972).
Defendants argue that since 1977 the operation of the medical care program at Stillwater has been subject to the terms of an order and consent decree entered by the Honorable Earl R. Larson in Hines v. Anderson, 439 F.Supp. 12 (D.Minn.1977). They claim that the Hines court retained jurisdiction and that Stillwater inmates who seek injunctive relief concerning medical care...
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...the courts of the state. Minnesota Statutes Section 3.736 [emphasis added]. In construing this provision, the Court in DeGidio v. Perpich, 612 F.Supp. 1383, (D.Minn.1985), was presented with a waiver argument that is identical to that advanced by the Plaintiffs here. Although accepting that......
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