Phillips v. Sheriff of Cook Cnty., No. 14–3753

• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Writing for the Court: Ripple, Circuit Judge.
• Citation: 828 F.3d 541
• Parties: Melvin Phillips, et al., Plaintiffs–Appellants, v. Sheriff of Cook County, et al., Defendants–Appellees.
• Docket Number: No. 14–3753,No. 15–1616
• Decision Date: 06 July 2016

828 F.3d 541

Melvin Phillips, et al., Plaintiffs–Appellants
v.
Sheriff of Cook County, et al., Defendants–Appellees.

No. 14–3753
No. 15–1616

United States Court of Appeals, Seventh Circuit.

Argued February 11, 2016
Decided July 6, 2016
Rehearing and Suggestion for Rehearing En Banc Denied August 3, 2016^*

Kenneth N. Flaxman, Law Office of Kenneth N. Flaxman P.C., Chicago, IL, for Plaintiffs–Appellants.

Michael Lambert Gallagher, Office of the Cook County State's Attorney, Chicago, IL, for Defendant–Appellee Sheriff of Cook County.

Michael Lambert Gallagher, Maureen O'Donoghue Hannon, Thomas Cargie, Office of the Cook County State's Attorney, Chicago, IL, for Defendant–Appellee Cook County, Illinois.

Before Ripple, Kanne, and Williams, Circuit Judges.

Ripple, Circuit Judge.

Plaintiffs Melvin Phillips, Malcolm Patton, Rodell Sanders, and Frank Powicki are current and former detainees of Cook County Jail (the “Jail”). They brought a class action under 42 U.S.C. § 1983 against Cook County, Illinois, and the Sheriff of Cook County (collectively, “Cook County”), claiming that the level of dental care they received at the Jail demonstrated deliberate indifference in violation of the Eighth and Fourteenth Amendments. The district court originally certified two classes of plaintiffs under Federal Rule of Civil Procedure 23. However, the district court subsequently decertified one class, modified the other class, and determined that the detainees' motion for injunctive relief was moot. The detainees timely appealed the district court's decision to decertify. While that appeal was pending, the detainees moved for a new trial under Federal Rule of Civil Procedure 60(b) based on newly discovered evidence, but the district court denied the motion. The detainees timely appealed this denial as well, and we consolidated the two appeals. We now hold that the district court acted well within its discretion in decertifying the two classes because of the lack of a

828 F.3d 544

common issue of fact or law. Further, the filing of a Rule 60(b) motion during this interlocutory appeal was inappropriate because there was no final judgment in the case. Moreover, because the district court took no action that substantially altered its decision on the decertification issue, we cannot treat its disposition of the Rule 60(b) filing as the appeal from a motion for reconsideration. Accordingly, we affirm the district court's decision to decertify the class and dismiss the appeal from the court's disposition of the Rule 60(b) motion.

I

The plaintiffs ask us to review two aspects of the proceedings in the district court. First, they ask that we review the decision to decertify a class of litigants. Second, they ask that we review the district court's disposition of the Rule 60(b) motion.

We first address the district court's decision to decertify the classes that it had previously certified. This issue requires, as our colleague in the district court correctly recognized, that we apply the decision of the Supreme Court in Wal–Mart Stores, Inc. v. Dukes , 564 U.S. 338, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011), a task we have undertaken several times before.¹

A.

This case got underway when a former detainee at the Jail brought a civil action in the Northern District of Illinois on January 27, 2009, alleging that Cook County showed deliberate indifference in its administration of dental care. Five detainees subsequently joined the lawsuit.²

On November 10, 2010, the district court ordered that the case proceed as a class action under Federal Rule of Civil Procedure 23(b)(2) for “[a]ll persons presently confined at the ... Jail who are experiencing dental pain and who have waited more than seven days after making a written request for treatment of that pain without having been examined by a dentist.”³ At that time, the court was of the view that the class members shared a common question based on the “defendants' decision to reduce dental services at the jail, particularly in reducing the number of dentists employed there to one.”⁴ The district court concluded in a subsequent order that the case could also proceed as a class action under Rule 23(b)(3).⁵

828 F.3d 545

After discovery, the detainees moved for preliminary and permanent injunctions on January 6, 2014. They asked the district court to require the defendants:

1. To screen health service requests complaining about dental pain on a daily basis,

2. To provide a procedure for detainees complaining about dental pain to obtain prompt access to pain reduction medicine (e.g., ibuprofen ), and

3. To maintain records of requests for dental treatment, including dates inmates are scheduled to be examined by dental personnel, dates inmates are actually examined by dental personnel, and documentation of cancellation or failure to appear for dental treatment or examination.^{[6 ]}

In response, the defendants moved to decertify the classes. The district court stayed briefing on the motion to decertify and then held a six-day bench trial on injunctive relief in June 2014.

The pleadings and the record of the bench trial establish the following facts. The Jail has a population of approximately 9,500 detainees. The average length of stay at the Jail is fifty-seven days, and the median length of stay is twelve days. Cermak Health Services (“Cermak”), a division of the Cook County Bureau of Health, provides dental care to the detainees at the Jail.

In 2008, the Department of Justice (“DOJ”) filed an action under the Civil Rights of Institutionalized Persons Act (“CRIPA”), 42 U.S.C. § 1997 et seq., which charged, among other allegations, that the Jail provided “inadequate medical care.” United States v. Cook Cty., Ill. , 761 F.Supp.2d 794, 796 (N.D. Ill. 2011).⁷ Cook County entered into a consent order with the DOJ in May 2010, agreeing to improve conditions at the Jail and to allow regular monitoring from the federal government. The consent order mandates that:

a. Cermak shall ensure that inmates receive adequate dental care, and follow up, in accordance with generally accepted correctional standards of care. Such care should be provided in a timely manner, taking into consideration the acuity of the problem and the inmate's anticipated length of stay. Dental care shall not be limited to extractions.

b. Cermak shall ensure that adequate dentist staffing and hours shall be provided to avoid unreasonable delays in dental care.^{[8 ]}

Prior to the DOJ action, in 2007, Cermak employed only one dentist, and his sole contribution to the inmates' dental health was extractions. As of 2014, however, Cermak employed seven dentists, two dental hygienists, and seven dental assistants. The plaintiffs' expert, Dr. Jay Shulman, described this level of staffing as “optimum.”⁹

Upon experiencing dental pain, a detainee can either complain directly to a nurse or officer, or submit a Health Service Request form (“HSR”). Under Cermak's policy, HSRs must be retrieved daily and reviewed by a registered nurse. When the HSR includes a complaint about dental pain, the policy requires that a qualified health professional examine the detainee

828 F.3d 546

within twenty-four hours. Despite the policy, Dr. Shulman opined that “face-to-face examinations by nursing staff are not consistent[ly]” performed.¹⁰

HSRs are then provided to the dental clinics. The clinics categorize the requests as emergency, urgent, priority, or routine. Appointments are then scheduled based on the type of request. A 2014 monitor's report found that “[t]he current dental wait time for immediate and urgent HSRs is one to three days. Routine dental HSR wait time is reported to be about 30 days. It unfortunately remains true, however, that it is extremely difficult [if] not impossible to verify the dental wait time.”¹¹

After an initial appointment, Cermak may schedule either a return appointment or an oral surgery at Stroger Hospital. Detainees who believe their care was inadequate at any stage in this process can file a grievance with a counselor at the Jail. Any grievances which concern medical issues are forwarded to Cermak and then faxed directly to a member of the dental staff if they involve dental needs.

Eight detainees testified about their dental treatment on behalf of the plaintiffs. Because their testimony is necessary for an understanding of the issues on appeal, we set it forth in some detail. Jonathan Williams testified that he complained of tooth pain in April 2010 and had a tooth extracted in June 2010. However, he “believe[d] they took out the wrong tooth. And [he] notified them.”¹² According to Mr. Williams, he was seen by the dental clinics about a dozen more times over the next three years, where he received fillings and tooth cleanings. Several times, the dentists referred Mr. Williams to Stroger for oral surgery related to the tooth that should have been extracted and provided him with pain medication. However, Mr. Williams did not undergo surgery. He then submitted several HSRs related to pain in early 2013, which did not receive a response. Mr. Williams again was referred to Stroger in March 2014, and finally had his tooth extracted in May...