Toliver v. Semple

          RULING ON PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

          Stefan R. Underhill United States District Judge.

         Sean Toliver initiated this action against various members of the Connecticut Department of Correction in November 2016. He alleges unconstitutional conditions of confinement at Osborn Correctional Institution (“Osborn”). Since the filing of Toliver’s complaint, nineteen other cases have been consolidated with the instant case and the consolidated plaintiffs filed their Second Amended Consolidated Complaint on September 21, 2018. Sec. Am. Consol. Compl., Doc. No. 114. The consolidated plaintiffs are current or former inmates housed in the “Q Buildings” at Osborne and allege unconstitutional conditions of confinement because they were exposed to excessive levels of polychlorinated biphenyls (PCBs), friable asbestos, and contaminated water. See Sec. Am. Consol. Compl., Doc. No. 114 at ¶ 7. On February 27, 2019, the plaintiffs moved for class certification on one class and one sub-class pursuant to Rules 23(a) and (b) of the Federal Rules of Civil Procedure. See Mot. for Class Cert., Doc. No. 126. Plaintiffs now seek appointment of class counsel pursuant to Rule 23(g) of the Federal Rules of Civil Procedure.

         The defendants make what amounts to a motion to dismiss in their opposition brief, arguing that “Plaintiffs’ claims are barred, ” Opp. to Mot. for Class Cert., Doc. No. 138 at 1, because the plaintiffs lack standing and, further, that they failed to exhaust their administrative remedies under the Prison Litigation Reform Act (“PLRA”). Opp. to Mot. for Class Cert., Doc. No. 138 at 5 (ECF pg. no.). Furthermore, the defendants assert that the plaintiffs fail to meet the requirements for class certification under Fed.R.Civ.P. 23. Id. For the reasons that follow, the plaintiffs’ motion is granted and the class and sub-class are certified and class counsel is appointed.

         I. Class Certification

         “In determining whether class certification is appropriate, a district court must first ascertain whether the claims meet the preconditions of Rule 23(a) of numerosity, commonality, typicality, and adequacy.” Teamsters Local 445 Freight Div. Pension Fund v. Bombardier Inc., 546 F.3d 196, 201-02 (2d Cir. 2008). A court “may then consider granting class certification where it ‘finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.’” Id. at 202 (quoting Fed.R.Civ.P. 23(b)(3)). Class certification is appropriate “only if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.” Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2551 (2001) (internal quotation marks omitted). “The party seeking class certification bears the burden of establishing by a preponderance of the evidence that each of Rule 23’s requirements has been met.” Myers v. Hertz Corp., 624 F.3d 537, 547 (2d Cir. 2010).

         Here, the plaintiffs seek certification of one class and one sub-class. See Mot. for Class Cert., Doc. No. 126. They define the “Contaminated Water Class” as “all current and former inmates of Osborn who, from November 19, 2013 through the present, have had to drink and shower in tap water from one or more of the onsite wells at Osborn, whether or not such current or former inmates were housed in the Q Buildings.” Id. at 1. Further, the plaintiffs define the “Q Buildings Subclass” as “[a]ll current and former inmates of Osborn who were housed in the Q Buildings from November 19, 2013 through the closing of the Q Buildings in or around December 2016, who may have been exposed to PCBs and friable asbestos.” Id. The defendants only opposed the “Contaminated Water Class”; they make no mention of the claims relating to asbestos and PCB exposure.

         A. Certification under Fed.R.Civ.P. 23(a)

         The first step of class certification analysis is whether the plaintiffs satisfied the four requirements of Rule 23(a): numerosity, commonality, typicality, and adequacy. Fed.R.Civ.P. 23(a)(1)-(4). The plaintiffs have done so here.

         1. Numerosity

         “The numerosity requirement in Rule 23(a)(1) does not mandate that joinder of all parties be impossible-only that the difficulty or inconvenience of joining all members of the class make us of the class appropriate.” Central States Southeast and Southwest Areas Health and Welfare Fund v. Merck-Medco Managed Care, LLC., 504 F.3d 229, 244-45 (2d Cir. 2007). “[E]vidence of exact class size or identity of class members” is not required for purposes of satisfying the numerosity requirement. Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir. 1993). Numerosity is presumed, however, “at a level of 40 members.” Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995). Further, “[d]etermination of practicability depends on all the circumstances surrounding a case, not on mere numbers. . . . Relevant considerations include judicial economy arising from the avoidance of a multiplicity of actions, geographic dispersion of class members, financial resources of class members, the ability of claimants to institute individual suits, and requests for prospective injunctive relief which won’t involve future class members.” Robidoux, 987 F.3d at 936.

         Here, the plaintiffs contend that the members of the class and sub-class “are so numerous that joinder of their claims is impracticable.” Mem. in Supp. Mot. for Class Cert., Doc. No. 126-1 at 15 (ECF pg. no.). Based on the proposed class definition, and the nature of the class members, it seems quite clear that the plaintiffs will reach the 40-member presumptive threshold. The plaintiffs have shown that the Q Buildings held more than 400 inmates at one time^[1] and, therefore, it is likely that the class and sub-class will include hundreds, if not thousands, of former and current prisoners housed there. With such a large group of potential plaintiffs and the circumstances surrounding the case, it would serve the purpose of judicial economy to avoid a “multiplicity of actions.” Robidoux, 987 F.3d at 936. Furthermore, many, if not most, of the class members are currently incarcerated, which may hinder their “ability … to institute individual suits.” Id. Accordingly, the plaintiffs have satisfied the numerosity requirement.

         2. Commonality

         “The commonality requirement is met if plaintiffs’ grievances share a common question of law or fact.” Central States, 504 F.3d at 245 (internal quotation marks omitted). “Commonality requires the plaintiff to demonstrate that the class members have suffered the same injury, ” which “does not mean merely that they have all suffered a violation of the same provision of law.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349-50 (2011). “What matters to class certification … is not the raising of common ‘questions’-even in droves-but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.” Id. at 350 (emphasis in original) (internal quotation marks omitted). Still, the “claims must depend on a common contention.” Id.

         Here, the plaintiffs assert that the proposed class are inmates who were subjected to unconstitutional conditions of confinement because they were exposed to harmful toxins and unsafe drinking water and, further, that the defendants knew of the unconstitutional conditions of confinement and failed to remedy them. Twenty cases, including this lead case, have already been consolidated due to the similarity of the factual allegations and legal assertions in the complaints. Accordingly, it seems clear that the plaintiffs’ cases share common questions of both law and fact and, further, that a class proceeding will generate common answers, particularly with ...