February 11, 2016
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 1:09-cv-00529 -
Joan Humphrey Lefkow, Judge.
Kanne, Ripple, and Williams, Circuit Judges.
Ripple, Circuit Judge.
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 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.
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.
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
(2011), a task we have under- taken several times
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.
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." 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." The district court concluded
in a subsequent order that the case could also proceed as a
class action under Rule 23(b)(3).
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 com- plaining 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
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
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.
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). 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
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."
experiencing dental pain, a detainee can either com- plain
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 within twenty-four hours. Despite the
policy, Dr. Shulman opined that "face-to-face
examinations by nursing staff are not consistent[ly]"
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."
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.
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." 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 2014. At the bench trial in early
June 2014, Mr. Williams noted that he had "stitches in
[his] mouth right now that just hang down, " and that,
despite requests for assistance, "they haven't been
Olden testified that he submitted a series of HSRs beginning
in January 18, 2013, in which he complained of a toothache
and asked that his tooth be extracted. He said that, at least
by January 28, 2013, he "was supposed to be scheduled to
get a tooth pulled." Mr. Olden did not get
evaluated at Stroger until June 10 and did not get his tooth
extracted until October 11. Mr. Olden acknowledged that he
saw a dentist ten different times throughout 2013 for
different treatments. Mr. Olden also acknowledged that he was
prescribed and then received pain medication eleven times
during that same period. However, he testified that there
were times, prior to the extraction, in which he did not have
pain medication- and that he submitted HSRs to that effect.
Olden further testified that he submitted an HSR on January
10, 2014, and on "that same night[, ] a nurse came on
the deck to issue medication" and "s[aw] [his]
face." He also submitted an HSR on January 13
and two more on January 15, but did not receive face-to-face
evaluations. Mr. Olden had a dental appointment
"sometime at the end of the month of January"
2014. The dentist extracted a tooth, and Mr.
Olden testified that the pain subsided.
Saiger testified that a piece of his wisdom tooth broke off
on March 23, 2013. He submitted two successive HSRs, but did
not receive a face-to-face evaluation. Mr. Saiger then
submitted a grievance on June 5, noting that he had not
received an evaluation. In response, the Jail scheduled a
dental appointment for the end of June. Mr. Saiger then moved
divisions, and the appointment was rescheduled. He did not
receive a dental appointment until September 2013. At that
time, the dentist determined that an extraction would be
necessary and told Mr. Saiger that a return appointment would
be scheduled in a week. However, Mr. Saiger did not return to
the clinic and have his tooth extracted until January 19,
Weatherspoon had a tooth extracted by Cermak in 2012. He
testified that he submitted an HSR on April 4, 2013,
complaining of an abscess in his upper right jaw, where the
tooth had been extracted. He did not receive a face-to-face
evaluation, but he was seen by a dentist on April 23. The
dentist examined Mr. Weatherspoon and referred him to Stroger
"[b]ecause there was nothing that she could
do." Mr. Weatherspoon submitted several
grievances, but, at the time of the bench trial in May 2014,
he had not had an appointment at Stroger. He did testify that
he had two appointments in the dental clinic in 2014, one for
an examination and one for a filling.
Allen testified that he had submitted two or three HSRs
complaining of dental pain before he received an appointment
sometime around May 17, 2013. At that appointment, the
dentist determined that Mr. Allen's tooth was too swollen
to be removed at that time. Mr. Allen was prescribed-and
subsequently received-ibuprofen and penicil- lin. His tooth
was then operated upon a few days later, on May 23, 2013. Mr.
Allen also testified that he experienced a separate dental
issue in October 2013. He submitted an HSR on October 28,
received a face-to-face evaluation on October 29, and then
visited the dental clinic on October 31.
Scott testified that he submitted an HSR com- plaining of
tooth pain on August 6, 2013. That same day, he had a
face-to-face evaluation with a physician's assistant who
prescribed aspirin and ibuprofen. Mr. Scott then saw a
dentist two days later, on August 8. The dentist referred him
to Stroger and prescribed antibiotics and pain medication.
Mr. Scott did not receive the medication for at least one
month. On November 5, 2013, Mr. Scott visited Stroger and had
x-rays taken. Mr. Scott did not visit Stroger again until
March 28, 2014, when his teeth were extracted.
Thompson testified that he chipped his tooth during lunch
sometime in August 2013 and asked a corrections officer if he
could be sent to a medical unit. The officer refused and
instead told Mr. Thompson to fill out an HSR. Mr. Thompson
submitted an HSR, but he did not receive an evaluation. A few
weeks later, Mr. Thompson visited the dispensary for an
unrelated issue and informed the doctor of his tooth pain.
The doctor prescribed ibuprofen, but Mr. Thompson never
received the medication. Mr. Thompson then filed a grievance
on August 27, 2013. He subsequently saw a dentist in early
September, who prescribed medication (which Mr. Thompson
received) and informed him that he had been "scheduled
to get the tooth pulled … September 19th. But when she
s[aw] the state of it, … she was going to speed up the
process." Mr. Thompson's tooth was extracted
on or around September 10, 2013.
Knickrehm testified that he submitted an HSR on October 8,
2013, complaining of a broken tooth and a toothache, but did
not receive any response. He submitted a second HSR and a
grievance on October 20. Mr. Knickrehm was then seen in
urgent care the next day and was prescribed medication.
However, he testified that he never received that medication.
Mr. Knickrehm was then seen in the dental clinic on November
21. The dentist determined that a few of Mr. Knickrehm's
teeth would need to be extracted, and expressed an intention
to schedule that appointment within the next week. However,
Mr. Knickrehm did not receive a return appointment until
December 19. Three days earlier, on December 16, Mr.
Knickrehm submitted a grievance that complained about his
wait. The dentist only extracted one tooth at this
appointment and then prescribed additional medication. Mr.
Knickrehm did not receive that prescription, and the
remaining teeth were not extracted until January 31, 2014.
considering this evidence, the district court denied the
motion for a preliminary injunction. The court later
decertified the Rule 23(b)(2) class, modified the Rule
23(b)(3) class, and denied the motion for a permanent
injunction as moot.
the court looked at the commonality requirement of Rule
23(a)(2). The court explained that the class members'
claims needed to "share some question of law or fact
that can be answered all at once and that the single answer
to that question will resolve a central issue in all class
members' claims." In its original certification,
the court found a common question concerning the inadequately
low number of dental staff. However, the increase in the
number of dentists eliminated this common question. Further,
Cermak had implemented policies that aligned with national
court could not find another common factor among all of the
detainees' claims, noting that "treatment of dental
pain may fall below the deliberate indifference threshold for
many reasons and at many stages." The court
therefore found that the merits of each plaintiff's claim
of deliberate in- difference would necessarily "depend
on the facts of the individual case." The detainees
proposed some new common questions, particularly ones about
the Jail's failure to provide face-to-face evaluations
within twenty-four hours of an HSR and its failure to provide
timely return to clinic appointments. However, the court
found that these questions "raise[d] two separate
causes" for a detainee's pain, which proved that
there was no common issue that could be assessed class-
wide. Further, neither of these allegations
pointed to a systematically deficient practice. The court
concluded that the commonality requirement was not met.
court noted that it "could end its inquiry here"
because its Rule 23(a)(2) analysis required that both classes
be decertified. It nevertheless went on to address, for
the sake of completeness, the Rule 23(b) requirements for
each class. After observing that there was no longer a single
identifiable remedy that could help all class members, the
court granted the defendant's motion to decertify the
Rule 23(b)(2) class. The court then discussed whether a class
could be certified under Rule 23(b)(3). The court concluded
that the Rule 23(b)(3) class could be modified to encompass
only those detainees whose claims arose when the Jail had
only one dentist, because their claims presented a common
question of deliberate indifference. This class's claims
are still pending in the district court.
the court explained that, because it decertified the Rule
23(b)(2) class, the motion for a permanent injunction was
moot. In other words, without a certifiable class, the court
saw no need to consider the underlying merits of the