Courtney McFields v. Thomas Dart

• Court: Court of Appeals for the Seventh Circuit
• Decided: December 8, 2020
• Docket: 20-1391
• Status: Published

Opinion

In the

United States Court of Appeals For the Seventh Circuit ____________________ No. 20-1391 COURTNEY MCFIELDS, Plaintiff-Appellant, v.

THOMAS J. DART, Sheriff of Cook County, and COOK COUNTY, ILLINOIS, Defendants-Appellees. ____________________

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 17 C 7424 — John Robert Blakey, Judge. ____________________

ARGUED OCTOBER 27, 2020 — DECIDED DECEMBER 8, 2020 ____________________

Before SYKES, Chief Judge, and KANNE and ST. EVE, Circuit Judges. KANNE, Circuit Judge. Plaintiff Courtney McFields, once a detainee at Illinois’s Cook County Jail, brought a putative class action against Cook County and its sheriff for allegedly depriving McFields and other detainees of adequate dental care. The district court denied class certification, and 2 No. 20-1391

McFields appealed. Because we conclude that the district court did not abuse its discretion, we affirm its decision. I. BACKGROUND Defendants Cook County and its sheriff operate Cook County Jail and are charged with providing medical and den- tal care to pretrial detainees housed there. The district court construed the word “detainees” in the complaint to mean “pretrial detainees” because the Cook County Jail “houses primarily people who have not yet been convicted.” The dif- ference matters because the standard of proof is different for medical claims asserted by pretrial detainees and those brought by persons already convicted. Under the jail’s so-called “paper triage” policy, a detainee who has dental pain and wants treatment must submit a health service request form (“HSRF”), various versions of which existed between 2011 and 2018. Once submitted, staff review the HSRF and categorize it as “routine,” “priority,” or “urgent,” and the detainee is then referred to a dentist for treatment in anywhere from three to thirty days (depending on the categorization). Importantly, however, most detainees do not receive a face-to-face assessment from a nurse or higher-level practi- tioner before they ultimately receive care from a dentist. A face-to-face assessment would include an oral health screen- ing, which could identify bona fide complaints of dental pain or reveal serious medical issues and would allow a nurse to dispense over-the-counter pain medication. Courtney McFields complains about that last aspect of this policy—the failure to provide all detainees who complain of dental pain with face-to-face assessments. McFields was held No. 20-1391 3

in the Cook County Jail from September 10 to December 18, 2014. He began experiencing dental pain while in custody, and on October 28, he submitted an HSRF complaining of a hole in his tooth and indicating a pain level of 7/10. A nurse reviewed the HSRF the next day, classified it as “routine,” and referred it to dental staff without conducting a face-to-face as- sessment. McFields submitted at least one additional HSRF in mid-November, complaining of a pain level of 9/10. On No- vember 20, McFields saw a dentist, who extracted the respon- sible tooth. On October 13, 2017, McFields and other plaintiffs filed a putative class action against Defendants alleging that they suffered gratuitous pain as a result of the jail’s paper triage policy. They alleged that the standard of care for processing a health service request requires a face-to-face assessment within 48 hours and that the jail’s policy deviating from this standard is objectively unreasonable in violation of the Four- teenth Amendment. 1 In April 2018, the district court denied Defendants’ motion to dismiss the case as untimely. The district court held that the previous class action Smentek v. Sheriff of Cook County, No. 09- cv-529 (N.D. Ill.), tolled the two-year statute of limitations for the plaintiffs’ claims. McFields v. Sheriff of Cook Cnty., No. 17- CV-7424, 2018 WL 1784138, at *3 (N.D. Ill. Apr. 13, 2018).

1 These plaintiffs were not the first to bring such a claim against De- fendants. McFields himself would have been a class member in a similar case, but that court ultimately set a class closing date of October 31, 2013— which excluded McFields, whose claim arose in 2014. Smentek v. Sheriff of Cook Cnty., No. 09-cv-529, 2016 WL 5939704, at *5 (N.D. Ill. Oct. 13, 2016). Hence the instant suit, which more or less picks up where Smentek left off. (The parties in Smentek ultimately settled the relevant class claims.) 4 No. 20-1391

Then, in November 2018, McFields and the other plaintiffs moved under Federal Rule of Civil Procedure 23(b)(3) to cer- tify a class of “[a]ll persons who, while detained at the Cook County Jail between November 1, 2013 and April 30, 2018, submitted a written ‘Health Service Request Form’ complain- ing of dental pain and did not receive a face-to-face assess- ment by a registered nurse or higher-level practitioner after submitting the request.”2 The district court denied the motion for class certification after concluding that the plaintiffs failed to satisfy the com- monality, typicality, and predominance requirements of Rule 23. The court first considered the nature of the plaintiffs’ claims and concluded that, to succeed, they would ultimately need to prove that the paper triage policy was “objectively un- reasonable,” which necessitates an individualized inquiry. With that in mind, the court then determined that commonal- ity was not satisfied because the existence of a policy that failed to provide face-to-face assessments—the only common question presented—was “not dispositive of Plaintiffs’ claims, or even particularly helpful in the required analysis.” Moreo- ver, typicality was not satisfied because “no case is typical”; each plaintiff “present[s] a different situation, involving dif- ferent dental issues, different degrees of pain, different de- lays, different treatments.” And finally, predominance was

2 The proposed April 30, 2018, closing date derives from still other litigation, brought by the United States Department of Justice, surround- ing the jail’s provision of medical care. There, the county agreed in a con- sent decree to permit regular monitoring by the federal government, and on April 30, 2018, the monitor concluded that the issues were resolved. United States v. Cook Cnty., No. 10 C 2946 (N.D. Ill. June 12, 2018), ECF No. 373 at 2. No. 20-1391 5

not satisfied because “individual issues—the facts and cir- cumstances of each individual detainee’s claim—predomi- nate” over common questions of law or fact. Afterwards, the other plaintiffs accepted unconditional of- fers of judgment and did not reserve the right to appeal. McFields also accepted an offer of judgment but did reserve his right to appeal. He then filed the appeal we now address. II. ANALYSIS We review the district court’s denial of class certification for abuse of discretion. Messner v. Northshore Univ. HealthSys- tem, 669 F.3d 802, 811 (7th Cir. 2012) (citing Arreola v. Godinez, 546 F.3d 788, 794 (7th Cir. 2008)). But if “the district court ba- ses its discretionary decision on an erroneous view of the law or a clearly erroneous assessment of the evidence, then it has necessarily abused its discretion.” Id. (citing Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990); Ervin v. OS Restaurant Servs., Inc., 632 F.3d 971, 976 (7th Cir. 2011)). “To be certified as a class action, the putative class must first meet the four requirements of Federal Rule of Civil Pro- cedure 23(a): numerosity, typicality, commonality, and ade- quacy.” Costello v. BeavEx, Inc., 810 F.3d 1045, 1059 (7th Cir. 2016) (citing Messner, 669 F.3d at 811). And when a plaintiff moves for certification under Rule 23(b)(3), as here, he must also show that “questions of law or fact common to the mem- bers of the proposed class predominate over questions affect- ing only individual class members.” Messner, 669 F.3d at 811 (citing Siegel v. Shell Oil Co., 612 F.3d 932, 935 (7th Cir. 2010)). We focus on Rule 23(a)’s commonality and typicality re- quirements and Rule 23(b)(3)’s predominance requirement, as those were the grounds for the district court’s decision. 6 No. 20-1391

A. Commonality Rule 23(a)(2) requires that there be “questions of law or fact common to the class.” Chi. Teachers Union, Local No. 1 v. Bd. of Educ. of Chi., 797 F.3d 426, 434 (7th Cir. 2015) (quoting Fed. R. Civ. P. 23(a)(2)). But “[a]ny competently crafted class complaint literally raises common ‘questions.’” Phillips v. Sheriff of Cook Cnty., 828 F.3d 541, 550 (7th Cir. 2016) (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349 (2011)). “What matters to class certification,” then, is “the capacity of a class- wide proceeding to generate common answers apt to drive the resolution of the litigation.” Suchanek v. Sturm Foods, Inc., 764 F.3d 750, 756 (7th Cir. 2014) (quoting Wal-Mart, 564 U.S. at 350). McFields argues that the questions common to the pro- posed class include (1) whether there was a widespread prac- tice of failing to provide face-to-face assessments and, if so, (2) whether that policy exposed detainees to a substantial risk of harm in violation of the Constitution. Before deciding whether these proffered common questions are sufficient to satisfy Rule 23(a)(2), however, we must dispose of McFields’s chief argument—that the district court, in analyzing com- monality (and, indeed, the other Rule 23 requirements), im- properly decided this case on the merits. That argument is without merit. Determining whether common questions are likely to generate common answers apt to drive the resolution of the litigation “requires a precise understanding of the nature of the plaintiffs’ claims.” Phillips, 828 F.3d at 552. This analysis therefore “may ‘entail some overlap with the merits of the plaintiff’s underlying claim.’” Id. (quoting Wal-Mart, 564 U.S. at 351); accord Szabo v. Bridge- port Machs., Inc., 249 F.3d 672, 676 (7th Cir. 2001) (Sometimes, No. 20-1391 7

“the judge must make a preliminary inquiry into the mer- its.”). McFields contends that Driver v. Marion County Sheriff, 859 F.3d 489 (2017), shows the impropriety of looking to the mer- its at the class certification stage. But there, we reiterated the above principle: “[t]o certify a class, the trial court must sat- isfy itself ‘after a rigorous analysis’ that the Rule 23(a) prereq- uisites are established, and ‘frequently that “rigorous analy- sis” will entail some overlap with the merits of the plaintiff’s underlying claim.’” Id. at 493 (alterations omitted) (quoting Wal-Mart, 564 U.S. at 350–51). We simply noted, in addition, the obvious principle that a defendant can’t defeat class certi- fication by “argu[ing] the merits of the claim … without ref- erencing the Rule 23 factors or establishing how those factors are impacted.” Id. That’s clearly not what happened here. And McFields’s reliance on Bennett v. Dart, 953 F.3d 467 (7th Cir. 2020), is misplaced for similar reasons. Nobody is arguing, and the district court did not hold, that “surety of prevailing on the merits” is a requirement for class certification. Id. at 469. So it was appropriate for the district court to analyze com- monality in light of the nature of McFields’s claim. And our analysis does the same. McFields’s denial-of-care claim is governed by two main cases. The first is Monell v. New York City Department of Social Services, 436 U.S. 658 (1978), which requires a plaintiff to show that he “(1) suffered a deprivation of a federal right; (2) as a result of either an express municipal policy, widespread cus- tom, or deliberate act of a decision-maker with final policy- making authority … ; which (3) was the proximate cause of his injury.” King v. Kramer, 763 F.3d 635, 649 (7th Cir. 2014) 8 No. 20-1391

(alterations omitted) (quoting Ienco v. City of Chicago, 286 F.3d 994, 998 (7th Cir. 2002)). The second is Miranda v. County of Lake, 900 F.3d 335 (7th Cir. 2018), in which we held that a pre- trial detainee bringing a claim for denial of medical care must show that the challenged policy is “objectively unreasona- ble.” Id. at 351 (citing Kingsley v. Hendrickson, 576 U.S. 389, 392 (2015)). “This standard requires courts to focus on the totality of facts and circumstances faced by the individual alleged to have provided inadequate medical care and to gauge objec- tively … whether the response was reasonable.” McCann v. Ogle Cnty., 909 F.3d 881, 886 (7th Cir. 2018). With these cases in mind, we can quickly discard McFields’s second proposed common question—whether the paper triage policy violates the Constitution. Answering this question in the affirmative requires McFields to prove that the policy was objectively unreasonable, Miranda, 900 F.3d at 351, but that is, by its nature, an inquiry not suitable for resolution as to all class members in one fell swoop, McCann, 909 F.3d at 886. Rather, it is an individualized inquiry that depends in large part on what is disclosed on each detainee’s HSRF— when it was submitted, what type of grievance and what level of pain it reveals, and so forth. So the second common ques- tion proposed by McFields is not a “common” question at all. That leaves only McFields’s first proposed common ques- tion—whether there even exists a policy that does not give face-to-face assessments to all detainees who complain of dental pain. But the answer to that question—the mere exist- ence of a policy—is relevant to just one small part of the anal- ysis required under Monell and Miranda, and it leaves us far from resolving the litigation on a classwide basis. No. 20-1391 9

We still must determine not only if that policy was objec- tively unreasonable as to each individual class member based on his or her specific circumstances, but also whether each de- tainee suffered a constitutional injury and whether each of those injuries was proximately caused by the unreasonable policy. See King, 763 F.3d at 649 (“[O]bviously, the question of whether there existed a policy or custom is distinct from the question of whether the plaintiff presents a cognizable consti- tutional injury.”). It matters immensely that each detainee “present[s] a dif- ferent situation that involved a different type of dental pain, took place at a different time, [and] involved different medical professionals and prison staff,” Phillips, 828 F.3d at 555; it is precisely these sorts of “[d]issimilarities within the proposed class” that “have the potential to impede the generation of common answers” apt to drive resolution of the litigation, Bell v. PNC Bank, Nat’l Ass’n, 800 F.3d 360, 374 (7th Cir. 2015) (quoting Wal-Mart, 564 U.S. at 350). Some examples illustrate the point. Suppose a detainee submits an HSRF complaining of a toothache in the morning and is treated by a world-class dentist that afternoon. Or im- agine that, for some reason, a perfectly healthy detainee falsely indicates extreme pain on his HSRF. Both would fall comfortably into McFields’s proposed class so long as neither was given a face-to-face assessment before receiving dental treatment, but obviously, these would-be plaintiffs have suf- fered no injury and have no colorable constitutional claim. Thus, determining only that the policy exists leaves us miles from resolving the litigation on a classwide basis. Or, as the district court put it, a failure to provide a face-to-face 10 No. 20-1391

assessment “says nothing about whether the ultimate course of treatment violated the Constitution.” In short, “[t]he claims of every class member will [not] rise or fall on the resolution of” whether the paper triage policy existed, Suchanek, 764 F.3d at 757, and whether the policy was objectively unreasonable requires an individualized, plaintiff- specific assessment, McCann, 909 F.3d at 886. We therefore conclude that the district court did not abuse its discretion in finding that McFields fails to satisfy commonality.3 B. Typicality Rule 23(a)(3) requires that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). Generally, a class repre- sentative’s “claim is typical if it ‘arises from the same event or practice or course of conduct that gives rise to the claims of other class members and her claims are based on the same le- gal theory.’” Oshana v. Coca-Cola Co., 472 F.3d 506, 514 (7th Cir. 2006) (alterations omitted) (quoting Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992)). “Although ‘the typicality re- quirement may be satisfied even if there are factual

3McFields also argues at length that Defendants are improperly re- characterizing his complaint as challenging a delay in treatment rather than what it is: a challenge to the specific practice of not providing face- to-face assessments, period. Not much recharacterizing is needed to con- strue McFields’s complaint as one for untimely care; it does refer to, for example, “the prompt treatment of dental pain”; the failure to conduct face-to-face assessments “within 48 hours”; and Defendants’ “refusal to ensure timely screening.” In any event, McFields does not cite any case holding that the failure to provide face-to-face assessments is per se objec- tively unreasonable regardless of “the totality of facts and circumstances faced by [each] individual.” McCann, 909 F.3d at 886. No. 20-1391 11

distinctions between the claims of the named plaintiffs and those of other class members,’ the requirement ‘primarily di- rects the district court to focus on whether the named repre- sentatives’ claims have the same essential characteristics as the claims of the class at large.’” Muro v. Target Corp., 580 F.3d 485, 492 (7th Cir. 2009) (quoting De La Fuente v. Stokely–Van Camp, Inc., 713 F.2d 225, 232 (7th Cir. 1983)). A class has been certified, for example, where “evidence was presented to show that all plaintiffs had ‘experienced dental pain and sig- nificant delays in treatment, if they were treated at all.’” Kress v. CCA of Tenn., LLC, 694 F.3d 890, 893 (7th Cir. 2012) (altera- tions omitted) (quoting Smentek v. Sheriff of Cook Cnty., No. 09 C 529, 2010 WL 4791509, at *1 (N.D. Ill. Nov. 18, 2010)). We agree with the district court that McFields has not “af- firmatively demonstrate[d] his compliance with the” typical- ity requirement. Wal-Mart, 564 U.S. at 350. Though a separate inquiry from the commonality question, our conclusion here flows from the same basic defects described above. See Priddy v. Health Care Servs. Corp., 870 F.3d 657, 660 (7th Cir. 2017) (“Commonality and typicality ‘tend to merge.’” (quoting Gen. Tel. Co. of S.W. v. Falcon, 457 U.S. 147, 157 n.13 (1982))). Each class member—McFields included—presents fundamentally unique circumstances. And these differing situations are not the mere “factual distinctions” that arise in most any case; these are overwhelming factual distinctions that defeat any “es- sential characteristics” across the claims. Muro, 580 F.3d at 492 (quoting De La Fuente, 713 F.2d at 232). McFields asserts that his claim is based on the same “course of conduct” that affected all members of the class. But that does not mean that his claim has “the same essential char- acteristics as the claims of the class at large,” which is what 12 No. 20-1391

“the requirement is meant to ensure.” Id. (quoting Retired Chi. Police Ass’n v. City of Chicago, 7 F.3d 584, 597 (7th Cir. 1993)). In fact, the district court found that “it was not the failure to provide the [face-to-face] assessment that allegedly delayed McFields’ treatment,” but “the delay in the execution of the [nurse’s] referral” of his HSRF to a dentist. “Had the nurse’s referral … been acted upon with expediency, McFields could hardly be heard to complain about the lack of a face-to-face assessment.” These facts set McFields’s claim apart from those of the other putative class members. We therefore see no abuse of discretion in the district court’s conclusion that eval- uating the plaintiffs’ claims “requires a ‘highly individualized inquiry’; each Plaintiff’s case is different and, therefore, no case is typical.” See Wrightsell v. Sheriff of Cook Cnty., No. 08 CV 5451, 2009 WL 482370, at *2 (N.D. Ill. Feb. 19, 2009). C. Predominance Finally, Rule 23(b)(3) requires “that the questions of law or fact common to class members predominate over any ques- tions affecting only individual members, and that a class ac- tion is superior to other available methods for fairly and effi- ciently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). This “inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623 (1997). The district court concluded that McFields failed to satisfy the predominance requirement because “individual issues— the facts and circumstances of each individual detainee’s claim—predominate.” We see no real need to analyze this is- sue given our conclusions that McFields failed to satisfy the requirements of Rule 23(a)(2) and (3). After all, Rule 23(b)(3) No. 20-1391 13

is “far more demanding” than the commonality requirement that he already failed to meet. Id. at 624. At any rate, predominance is doomed here. Satisfying pre- dominance “requires more than a tally of common questions; the district court must consider their relative importance.” Beaton v. SpeedyPC Software, 907 F.3d 1018, 1029 (7th Cir. 2018) (citing Parko v. Shell Oil Co., 739 F.3d 1083, 1085 (7th Cir. 2014)); see Amchem Prods., 521 U.S. at 624 (finding predomi- nance not satisfied “[g]iven the greater number of questions peculiar to the [individual] class members … and the signifi- cance of those uncommon questions”). Considering our anal- ysis above, we agree with the district court’s finding that in- dividual issues predominate over common questions—the opposite of what Rule 23(b)(3) requires. We have no need to address Defendants’ alternative argu- ment that McFields is an inadequate class representative be- cause his claim is untimely. III. CONCLUSION For the above reasons, we conclude that the district court did not abuse its discretion in denying class certification. We therefore AFFIRM the district court.