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Phillips v. Sheriff of Cook County

United States Court of Appeals, Seventh Circuit

July 6, 2016

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

          Argued February 11, 2016

         Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:09-cv-00529 - Joan Humphrey Lefkow, Judge.

          Before Kanne, Ripple, 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 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.


         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 (2011), a task we have under- taken several times before.[1]


         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]

         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 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 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 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]" 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 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 addressed."[13]

         Terrance 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."[14] 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.

         Mr. 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."[15] 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.[16] The dentist extracted a tooth, and Mr. Olden testified that the pain subsided.[17]

         John 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, 2014.[18]

         Kenneth 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."[19] 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.

         Orlando 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.

         Quentin 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.

         Stanford 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."[20] Mr. Thompson's tooth was extracted on or around September 10, 2013.[21]

         Jason 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.

         After 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.

         First, 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."[22] 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 standards.

         The 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."[23] 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."[24] 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.[25] Further, neither of these allegations pointed to a systematically deficient practice. The court concluded that the commonality requirement was not met.

         The court noted that it "could end its inquiry here" because its Rule 23(a)(2) analysis required that both classes be decertified.[26] 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.

         Finally, 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 ...

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