United States District Court, S.D. Indiana, Terre Haute Division
YAHYA (JOHN) LINDH, on his own behalf and on behalf of those similarly situated, Plaintiff,
WARDEN, FEDERAL CORRECTIONAL INSTITUTION, TERRE HAUTE, INDIANA, in his official capacity. Defendant.
ORDER ON MOTION FOR CLASS CERTIFICATION
JANE MAGNUS-STINSON, District Judge.
Presently pending before the Court is Plaintiff Yahya (John) Lindh's Motion to Certify Class. [Filing No. 8.] Mr. Lindh seeks injunctive relief from Defendant's policy that prisoners in the Communications Management Unit ("CMU") of the Terre Haute Federal Correctional Institution undergo a visual inspection of all body surfaces and body cavities before non-contact, social visits. [Filing No. 7 at 1; Filing No. 21 at 2.] Mr. Lindh seeks to certify a class of "all persons currently and in the future confined in the [Terre Haute CMU]." [Filing No. 7 at 2.] Defendant opposes class certification. [Filing No. 18.] For the reasons that follow, the Court grants Mr. Lindh's Motion to Certify Class. [Filing No. 8.]
STANDARD OF REVIEW
It is the plaintiff's burden to prove that the class should be certified. Oshana v. Coca-Cola Co., 472 F.3d 506, 513 (7th Cir. 2006). The Court "may certify a class of plaintiffs if the putative class satisfies all four requirements of Federal Rule of Civil Procedure 23(a)-numerosity, commonality, typicality, and adequacy of representation-and any one of the conditions of Rule 23(b)." Id. The plaintiff also must show that the class is "indeed identifiable as a class." Id.
The primary question when ruling on class certification is "whether plaintiff is asserting a claim which, assuming its merit, will satisfy the requirements of Rule 23." Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 675 (7th Cir. 2001). But Rule 23 "does not set forth a mere pleading standard." Parko v. Shell Oil Co., 739 F.3d 1083, 1085 (7th Cir. 2014), reh'g denied. "Rather, when factual disputes bear on issues vital to certification... the court must receive evidence and resolve the disputes before deciding whether to certify the case." Id. ; see also Szabo, 249 F.3d at 676 (when deciding whether to certify a class, the Court must "make whatever factual and legal inquiries are necessary under Rule 23" to resolve contested issues).
Mr. Lindh seeks to certify a class in this action pursuant to Rule 23(b)(2). [Filing No. 9 at 1.] A class may be certified under that section "only if the party opposing the class acted or refused to act on grounds that apply generally to the class." Rahman v. Chertoff, 530 F.3d 622, 627 (7th Cir. 2008).
Mr. Lindh is a prisoner in the CMU at the Federal Correctional Institution in Terre Haute. [Filing No. 7 at 1; Filing No. 17 at 1 (admitting allegation).] "Inmates are placed in the CMU to allow greater management of their communication with persons in the community through more effective monitoring of their telephone use, written correspondence, and visiting." [Filing No. 18-1 at 3 (affidavit from Deputy Captain Vincent Rigsby).]
The CMU contains 55 cells that could hold two prisoners each. [Filing No. 7 at 3; Filing No. 17 at 4 (admitting allegation).] "Within the CMU, separated by a locked door from the areas that prisoners are allowed regular access to, there are two rooms separated by a plexiglass window." [Filing No. 7 at 4; Filing No. 17 at 4 (admitting allegation).] At issue in this litigation are what the parties call "social visits, " and it is undisputed that these visits "take place through the plexiglass with the parties conversing by phone." [Filing No. 7 at 4; Filing No. 17 at 4 (admitting allegation).] Inmates in the CMU are visually searched prior to these non-contact, social visits. [Filing No. 18-1 at 3.] Inmates are typically not searched after a social visit unless there is reasonable suspicion that some type of contraband had an opportunity to change hands. [Filing No. 18-1 at 3.] That scenario is rare. [Filing No. 18-1 at 3.] As of November 6, 2014, 48 inmates were housed in the CMU and 19 of them had received at least one social visit while housed in the CMU. [Filing No. 24-2 at 1-2.]
In May 2014, Mr. Lindh filed a putative class action against Defendant. [Filing No. 1.] He contends that Defendant has a policy "of subjecting CMU prisoners to the visual searches, which are strip searches, if they have non-contact visits." [Filing No. 7 at 6.] Mr. Lindh claims that this "is unreasonable and violates the Fourth Amendment to the United States Constitution." [Filing No. 7 at 6.] Mr. Lindh proposes a class defined as "all persons currently and in the future confined in the Communications Management Unit at the Federal Correctional Institution-Terre Haute." [Filing No. 7 at 3.] He now requests that the Court certify his proposed class, [Filing No. 8], which Defendant opposes, [Filing No. 18].