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Austin v. Smith

United States District Court, W.D. Wisconsin

March 9, 2017

DAVID D. AUSTIN II, Plaintiff,
v.
JUDY P. SMITH, EDWARD WALL, REXFORD SMITH, and JON LITSCHER, Defendants.

          OPINION & ORDER

          JAMES D. PETERSON District Judge.

         Plaintiff David D. Austin II, a former prisoner at Oshkosh Correctional Institution (OCI), filed this pro se action under 42 U.S.C. § 1983 against OCI prison officials. He alleges that the plexiglass sheets covering the windows of the cells in certain blocks of OCI cause the cells to be extremely hot and potentially unsafe. I allowed him to proceed against defendants on claims that they are deliberately indifferent to the unreasonable health and safety risks posed by the permanently closed windows in his cell in violation of the Eighth Amendment, that they transferred Austin to a unit containing the dangerous cells without due process in violation of the Fourteenth Amendment, and that sealing the windows in specific units of the prison constitutes arbitrarily unequal treatment in violation of the Fourteenth Amendment. Dkt. 14; Dkt. 42. I denied both of his motions to proceed as a class action because, at the time, he was not represented by counsel and so could not fairly and adequately protect the interests of the proposed class.

         Austin has since been released from prison and obtained counsel. Through counsel, he renews his motion for class action status. Dkt. 47. I interpret this as a motion to certify a proposed class under Federal Rule of Civil Procedure 23. I am satisfied that Austin can meet the requirements of Rule 23.

         BACKGROUND

         Austin was incarcerated in the P-Unit block of OCI and was then transferred to the R-Unit block without a hearing. R-Unit is a general population unit that houses more than 200 inmates. Austin alleges that OCI staff members transfer inmates they dislike to R-Unit and W-Unit, “both of which are set up like maximum security segregation units with steel doors with traps in them; . . . access to the windows has been intentionally blocked by screwing a sheet of Plexiglas over the window frame.” Dkt. 25, at 7. Because of the lack of ventilation, the cells are 15 to 25 degrees hotter than the temperature outdoors and 10 degrees hotter than the common areas in the prison.

         Austin voiced his concerns about the plexiglass coverings to defendant Rexford Smith, the R-Unit manager, but Smith did not uncover the windows. Austin filed grievances on behalf of himself and the other inmates in R-Unit. The institution complaint examiner investigated Austin's complaints and responded, explaining that state engineers determined that there was sufficient air flow in the cells.

         Austin filed his complaint in this court on August 19, 2015. He was released from prison in June 2016.

         ANALYSIS

         Austin has moved for class certification of his claims under Rule 23. He proposes a Rule 23 class of:

inmates currently housed at the Oshkosh Correctional Institution who were housed in R Unit prior to May of 2016 and W Unit prior to March of 2016.

         This definition includes potential plaintiffs whose claims may be barred by the applicable statute of limitations. “[T]o determine the proper statute of limitations for § 1983 actions, a federal court must adopt the forum state's statute of limitations for personal injury claims.” Ashafa v. City of Chicago, 146 F.3d 459, 461 (7th Cir. 1998). Wisconsin's six-year statute of limitations for personal rights claims applies to Austin's claims. See Wis. Stat. § 893.53. Austin filed suit on August 19, 2015, so for potential plaintiffs' claims to be timely, they must have accrued-in other words, the statute of limitations must have started running-no earlier than August 19, 2009. Claims concerning continuing Eighth Amendment violations, such as Austin's claims, accrue on the date of the last incidence of the violation, that is, the last day of confinement in the cell at issue. See Turley v. Rednour, 729 F.3d 645, 651 (7th Cir. 2013). I will revise Austin's definition as follows:

inmates currently housed at the Oshkosh Correctional Institution who were housed in R Unit between August 19, 2009, and April 30, 2016, or who were housed in W Unit between August 19, 2009, and February 28, 2016.

         The court will certify a class action only if, “after a rigorous analysis, ” it is satisfied that the plaintiff has met the requirements of Rule 23. Davis v. Hutchins, 321 F.3d 641, 649 (7th Cir. 2003) (quoting Gen. Tele. Co. of the S.W. v. Falcon, 457 U.S. 147, 160-61 (1982)). Under Rule 23(a), the proposed class must satisfy the requirements of numerosity, commonality, typicality, and adequacy of representation. The class must also satisfy one subsection of Rule 23(b). In this case, Rule 23(b)(3) applies; it requires a showing that the common issues predominate over other issues and that the class action method provides the best way to resolve those issues.

         A. ...


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