Jordan v. Wolke

75 F.R.D. 696, 1977 U.S. Dist. LEXIS 15466
CourtDistrict Court, E.D. Wisconsin
DecidedJune 13, 1977
DocketNo. 77-C-81
StatusPublished
Cited by5 cases

This text of 75 F.R.D. 696 (Jordan v. Wolke) is published on Counsel Stack Legal Research, covering District Court, E.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jordan v. Wolke, 75 F.R.D. 696, 1977 U.S. Dist. LEXIS 15466 (E.D. Wis. 1977).

Opinion

DECISION and ORDER

MYRON L. GORDON, District Judge.

The six named plaintiffs in this action are incarcerated as pretrial detainees in the general population of the Milwaukee county jail. Each has been incarcerated for several months solely because of his inability to post bond pending trial. The plaintiffs claim that the policies, practices, and conditions of the Milwaukee county jail with respect to overcrowding, visitation, recreational, educational, and training facilities, and medical and dental care violate their rights under the fourteenth amendment due process and equal protection clauses of the Constitution. They seek declaratory and injunctive relief on behalf of themselves and of a proposed class consisting of:

“ . . . all pretrial detainees who are or will be incarcerated as part of the general population of the Milwaukee County Jail because of their inability to post bond pending trial.”

The action is brought pursuant to 42 U.S.C. § 1983, and 28 U.S.C. §§ 1343, 2201, and 2202.

The named plaintiffs have moved for a determination that this action be maintained as a class action; the proposed plain[698]*698tiff class is defined above. In addition, they have moved for preliminary injunctive relief regarding the visitation aspect of the complaint. The defendants, the county sheriff and the chief jailer of the Milwaukee county jail, have filed an answer. The parties have filed briefs and affidavits setting forth their positions on the pending motions.

For the reasons discussed below, I have determined that the plaintiffs’ motion for an order that this action be maintained as a class action should be granted. I intend to grant their motion for preliminary injunc-tive relief, but it will be delayed until the court receives a report from a master, appointed herein, containing recommendations as to the precise nature and breadth of such order.

I. CLASS ACTION

The named plaintiffs urge that this action be allowed to proceed as a class action, pursuant to Rule 23(b)(2), Federal Rules of Civil Procedure. Before such a class will be certified, it must be shown, under Rule 23(a), that

“(1) the class is so numerous that join-der of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class, . . . ”

and under Rule 23(b)(2), that

“(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.”

It is apparent that the class of pretrial detainees who are or will be incarcerated in the Milwaukee county jail is so numerous that joinder of all such individuals as named plaintiffs in this action would be impracticable. The defendants concede that the jail is used primarily as a holding facility for individuals awaiting trial or transfer to another facility following conviction. In his brief, counsel for the defendants Wolke and Littel stated (presumably regarding pretrial detainees) that in 1976 almost 88% of such detainees were released within 30 days of entry. Moreover, I have previously taken judicial notice of the fact that “the turnover of detained persons at the county jail is great.” Inmates of Milwaukee County Jail v. Petersen, 51 F.R.D. 540, 542 (E.D. Wis. 1971). Although the defendants deny that the jail houses as many as 250 persons, I believe that the joinder of such a large and constantly changing number of pretrial detainees as named plaintiffs in this action would be impracticable.

Pursuant to Rule 23(a)(2) and (3), the plaintiffs must demonstrate that questions of law or fact are common to all proposed members and that claims or defenses have been raised which are representative of the class. The evidentiary materials and briefs filed in support of the preliminary injunction motion reveal that the Rule 23(a)(2) and (3) requirements have been satisfied as to the plaintiffs’ visitation claim. All pretrial detainees are subject to substantially similar visitation policies and practices, and the constitutional claims raised by the named plaintiffs in this regard appear to be common to and representative of other potential class members.

The allegations of the complaint directed to overcrowding, jail programs and facilities, and medical and dental care, are disputed by the parties, and no evidentiary materials have been submitted as to these aspects of the action. I therefore find it difficult to determine at this time whether the plaintiffs will be able to satisfy the requirements of Rule 23(a)(2) and (3) with respect to these remaining claims. Since an action may be maintained as a class action as to particular issues, Rule 23(c)(4)(A), I intend at this time to certify a class of pretrial detainees in the jail’s general population who are subject to the jail’s visitation regulations and policies. Under the provisions of Rule 23(c)(1), the court may later [699]*699permit the amendment of this class definition on motion of a party.

The materials submitted to date also indicate that the named plaintiffs are pursuing this action vigorously and that they will adequately protect the interests of the class. Rule 23(a)(4), Federal Rules of Civil Procedure. Contrary to the defendants’ position, I do not believe that the plaintiffs’ apparently extended detention in the jail renders them unsuitable representatives of the class of pretrial detainees defined in this decision. As appears in part II of this decision, all such persons share certain interests which the named plaintiffs are pursuing with adequate enthusiasm in this lawsuit. It is also apparent that with respect to visitation, the defendants have “acted or refused to act on grounds generally applicable” to all pretrial detainees, thus fulfilling Rule 23(b)(2).

In the past, I declined to certify a class of persons detained at the Milwaukee county jail, on the ground, inter alia, that the frequent turnover of detainees would create problems in providing “reasonable notice” to class members. Inmates of Milwaukee County Jail v. Petersen, 51 F.R.D. 540, 542 (E.D. Wis. 1971).

Since the time of that decision, a three-judge court in this district has held that “Rule 23 itself does not require notice to the members of a (b)(2) class, since the mandatory notice provisions of Rule 23(c)(2) are by their terms inapplicable . . . ” and that notice may be given at the court’s discretion under the circumstances set forth in Rule 23(d)(2). Redhail v. Zablocki, 418 F.Supp. 1061, 1066-7 (E.D. Wis. 1976), probable jurisdiction noted, 45 L.W. 3570 (February 22, 1977). In view of Redhail,

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75 F.R.D. 696, 1977 U.S. Dist. LEXIS 15466, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jordan-v-wolke-wied-1977.