United States District Court, D. Connecticut
RULING ON PLAINTIFFS’ MOTION FOR CLASS
R. Underhill United States District Judge.
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
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.
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).
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.
Certification under Fed.R.Civ.P. 23(a)
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.
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.
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
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
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.
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 ...