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Wilburn v. Nelson

United States District Court, N.D. Indiana, South Bend Division

November 13, 2018

TASHIANNE WILBURN, as the natural parent and guardian of Z.W., a minor child, and on behalf of all others similarly situated, Plaintiffs,
CYNTHIA NELSON, in her official capacity as the Executive Director of the St. Joseph County Juvenile Justice Center, et al., Defendants.



         This is a proposed class action involving the alleged policy of the St. Joseph Juvenile Justice Center (“JJC”) of placing juvenile detainees in solitary confinement. Plaintiffs, Tashianne Wilburn and Quanan Wilburn, are the parents and guardians of Z.W., a minor child with special needs. When he was 11 years old, Z.W. was held in custody at the JJC and endured extended periods of solitary confinement. Z.W. is the purported class representative. The Wilburns seek an injunction bringing to a halt certain policies of the JJC, but they also seek individual damages for their child, Z.W.

         Plaintiffs seek class certification for the following class: “All detainees under the age of 18 years old who have been held or will be held in any form of solitary confinement at the St. Joseph County Juvenile Justice Center since September 7, 2016.” [DE 14 at 6.] Additionally, Plaintiffs seek class certification of two subclasses. The “IDEA Subclass”: “All members of the Juvenile Class with a disability, as defined by the Individuals with Disabilities in Education Act (“IDEA”), who have been or will be denied the special education and related support services to which they are entitled under the IDEA.” [DE 14 at 6.] And the “Disability Subclass”: “All members of the Juvenile Class with psychiatric and/or intellectual disabilities, as defined by the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973, who have been or will be denied the programs, services, and benefits (including the individualized assessment) mandated by the Americans with Disabilities Act and/or Section 504 of the Rehabilitation Act of 1973.” [Id.] Because the requirements for a class action have been met, I will grant the class certification, but only as it relates to the request for injunctive relief.


          Plaintiffs filed their complaint on May 1, 2017, seeking relief under 42 U.S.C. § 1983 for alleged violation of Z.W.'s constitutional rights. [DE 1.] They amended their complaint on April 27, 2018, to include allegations on behalf of the proposed juvenile class and the two subclasses. [DE 12.] On the same day, Plaintiffs filed the instant motion for class certification. [DE 13.]

         The JJC includes a juvenile detention facility that can accommodate approximately 90 juvenile detainees when fully operational. [DE 12 ¶ 14.] Although Defendants dispute the use of the term “solitary confinement” [DE 34 at 7-8], the JJC's own literature states that one level of detention is “Level 1“ which consists of no papers/books/pictures in room, and the detainee is confined to his or her room (except for a daily hour of exercise). [DE 14-4 at 4.] The amended complaint alleges that detainees may even lose their hour out due to various offenses. [DE 12 ¶ 21.] Additionally, the detainees at this level eat meals in their rooms, and they do not attend school. [DE 12 ¶¶ 24-25.] This is in contrast to other detainees that attend school each day for at least 5 hours. [DE 12 ¶ 25.] Detainees in solitary confinement are put in small locked rooms that resemble jail cells, and are routinely placed in “F-Pod, ” which have single bed isolation cells. [DE 12 ¶ 22.] Additionally, those in solitary confinement cannot communicate in person or by telephone with parents or guardians. [DE 12 ¶ 26.] All detainees spend at least their first two days in solitary confinement once admitted to the JJC. [DE 12 ¶29, DE 14-4 at 4.]

         The amended complaint alleges that solitary confinement at the JJC is not only reserved for situations necessary to protect the detainee or others, but also that it is used for punishment. [DE 12 ¶ 27.] For example, Plaintiffs allege that solitary confinement is given if detainees violate rules such as: failure to follow staff instruction, being disrespectful to staff, disorderly conduct, lying/manipulation of staff, and destruction of property. [DE 12 ¶ 34.] Ultimately, the amended complaint alleges that “[b]ecause the JJC [] lacks the necessary funds, staffing, and physical facilities to properly care for children, especially those with disabilities and special educational needs . . . the JJC Staff have used and are using solitary confinement as a catchall - a place to warehouse children with disabilities who have difficulty following rules and are in need of special services.” [DE 12 ¶ 35.]

         When Z.W. was placed in custody at the JJC, he had been diagnosed with a serious emotional disability and qualified for special educational services under his diagnosis of an emotional disability, specific learning disability, and language impairment. [DE 4 ¶ 38.] But he still underwent “extended periods of solitary confinement” and was placed in isolation at the directive of the JJC's Executive Director, Cynthia Nelson. [DE 4 ¶¶ 38, 1, 14-8.] While in confinement, Z.W. reported that he was “going crazy in his room, ” and he was depressed and stressed. [DE 14-49, 14-8.]

         Before getting to the merits, there is a preliminary issue relating to the timeliness of Defendants' opposition brief. As set out earlier, Plaintiffs filed their motion for class certification on April 27, 2018. [DE 13.] As Magistrate Judge Michael Gotsch correctly noted in his opinion denying the motion to stay the motion for class certification, “Plaintiffs' Motion for Class Certification [DE 13] became ripe on May 14, 2018, when Defendants failed to file a response brief despite being afforded fourteen days to do so as required under N.D. Ind. L.R. 7-1(d)(2)(A).” [DE 30 at 1.] He also noted that Defendants gave the Court no reason to reopen the briefing on the pending motion for class certification. [Id. at 3.] Without seeking leave to file a belated response, Defendants simply filed their memorandum in opposition on August 22, 2018 - 103 days after the deadline had expired. [DE 34.] There is no doubt that Defendants' memorandum in opposition is untimely. But given the gravity of the issues at stake in this litigation, I will look past the Defendants' lack of diligence and will get to the merits of the issue.


         Rule 23(a) of the Federal Rules of Civil Procedure allows a suit by representative parties on behalf of a class if the plaintiff establishes four requirements: (1) numerosity, (2) common questions of law or fact, (3) typicality, and (4) adequate representation. Fed.R.Civ.P. 23(a). In addition, the plaintiff must establish at least one prong of Rule 23(b). Here, Plaintiffs contend that the proposed class and subclasses are appropriate under any one of the three subsections of Rule 23(b). The party seeking class certification bears the burden of demonstrating that the requirements of Rule 23 are met. Retired Chicago Police Ass'n v. City of Chicago, 7 F.3d 584, 596 (7th Cir. 1993). For purposes of a motion to certify a class, the court does not reach the merits of the complaint. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974) (“In determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met.”).

         A. Rule 23(a) Requirements

         1. Numerosity

         Rule 23(a)(1) requires that the class be “so numerous that joinder of all members is impracticable.” Fed.R.Civ.P. 23(a)(1). While there is no magic number, this Circuit has found that a class with more than forty members will generally satisfy the numerosity requirement. Swanson v. Am. Consumer Indus., Inc., 415 F.2d 1326, 1333 (7th Cir. 1969); Pruitt v. City of Chicago, 472 F.3d 925, 926-27 (7th Cir. 2006). The JJC's own records show that over 500 juveniles under the age of 18 have been admitted since September 7, 2016, and all detainees spend 48 hours on Level 1 once admitted. [DE 14-4; 14-55 at JJC000473-486; 14-56 at JJC000001, JJC 0000015, JJC 0000043, JJC 0000056, JJC 000070.] Defendants also admit that “each of the residents in that time period have been isolated from other residents and from the general public for various reasons on a daily basis” and that “all juveniles housed at the JJC” have been “confined to their rooms, isolated from other residents and housed in restrictive units at various times ...

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