Lyons v. Russell

• Court: District Court, D. Nevada
• Decided: January 24, 2025
• Docket: 3:23-cv-00335
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 WILLIAM LYONS, Case No. 3:23-cv-00335-MMD-CSD

7 Plaintiff, ORDER v. 8 PERRY RUSSELL, et al., 9 Defendants. 10 11 I. SUMMARY 12 Pro se Plaintiff William Lyons, who is incarcerated at Northern Nevada Correctional 13 Center (“NNCC”), filed this action against NNCC officials and medical personnel1 under 14 42 U.S.C. § 1983 and the Americans with Disabilities Act (“ADA”), alleging that 15 Defendants violated his civil rights when they detained him and 150 other prisoners on 16 NNCC’s athletic field in excessive heat. (ECF No. 7 (“Amended Complaint).)2 Before the 17 Court is United States Magistrate Judge Craig S. Denney’s Report and Recommendation 18 (“R&R”), recommending that the Court deny Plaintiff’s motion for certification of a class 19 action (ECF No. 20 (“Motion to Certify”))3 and deny as moot the motion to stay case 20 pending class certification (ECF No. 46). (ECF No. 47.) Plaintiff timely objected to the 21

22 1Defendants are Sergeant Sandra Walker, Marsha Goodfellow (sued as “Nurse Marsha”), and Doe senior staff members. (ECF Nos. 9, 42 (voluntarily dismissing 23 Defendant Julia Cross).)

24 2The Court screened the Amended Complaint and permitted Plaintiff to proceed with an Eighth Amendment conditions of confinement claim against Walker; an Eighth 25 Amendment deliberate indifference to serious medical needs claim against Nurse Julia and Marsha; and a Fourteenth Amendment equal protection claim against Walker and 26 Doe senior staff members, if and when Plaintiff learns their identities. (ECF No. 9.) The Court also permitted Plaintiff to proceed with ADA and Rehabilitation Act (“RA”) claims 27 against Walker and Doe staff members in their official capacities. (Id.) Plaintiff requests declaratory and injunctive relief, as well as damages. (ECF No. 7 at 12.) 28 3Defendants responded (ECF No. 29) and Plaintiff replied (ECF No. 35). 2 52 (“Response”)). 3 Reviewing the Motion to Certify de novo, the Court finds that the class certification 4 factors set out in Fed. R. Civ. P. 23 present a close question which may benefit from 5 further counselled briefing. Accordingly, the Court will adopt the recommendations in the 6 R&R (ECF No. 47) but will deny the Motion to Certify without prejudice. The Court will sua 7 sponte refer this case to the Pro Bono Program to appoint counsel for the purpose of 8 determining whether a renewed motion to certify a class action or to pursue other 9 collective relief is merited and serving as counsel for any such relief. 10 II. DISCUSSION5 11 This Court “may accept, reject, or modify, in whole or in part, the findings or 12 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party 13 timely objects to a magistrate judge’s R&R, the Court is required to “make a de novo 14 determination of those portions of the R&R to which objection is made.” Id. Lyons objects 15 to Judge Denney’s recommendation to deny class certification. (ECF No. 50.) The Court 16 will thus review Plaintiff’s Motion to Certify de novo. 17 A. Motion to Certify (ECF No. 20) 18 Lyons moves to certify a class including several named plaintiffs (including himself, 19 David Thompson, Robert Jones, Percey Lee Ric’e, and William Thompson), as well as 20 more than 150 unnamed class members. (ECF No. 20.) Each of the named class 21 members has filed an individual lawsuit under Section 1983 related to a July 11, 2021, 22 23

24 4Plaintiff subsequently filed a second document (ECF No. 51) titled “notice to the Court regarding objection to Magistrate Judge’s R&R,” in which he explained that his 25 original Objection may not have been received by the November 12, 2024, deadline, because of delayed processing by the NNCC library. However, the original Objection 26 (ECF No. 50) was in fact docketed by the deadline, so the Court finds any request in Plaintiff’s second filing (ECF No. 51) moot. 27 5The Court adopts the summary of the relevant background included in the R&R 28 where otherwise consistent with this order. 2 define the class as prisoners housed in NNCC’s Unit 3 or Unit 1 who were exposed to 3 extreme heat for at least 20 minutes between 11:15 a.m. and 2:45 p.m. on July 11, 2021, 4 and who may or may not have suffered injury. (ECF No. 20.) 5 “The class action is ‘an exception to the usual rule that litigation is conducted by 6 and on behalf of the individual named parties only.’” Wal-Mart Stores, Inc. v. Dukes, 564 7 U.S. 338, 348 (2011) (quoting Califano v. Yamasaki, 442 U.S. 682, 700-01 (1979)). Under 8 Rule 23, a party seeking certification must first satisfy four prerequisites: “(1) the class is 9 so numerous that joinder of all members is impracticable; (2) there are questions of law 10 or fact common to the class; (3) the claims or defenses of the representative parties are 11 typical of the claims or defenses of the class; and (4) the representative parties will fairly 12 and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a). If the 13 requirements in subsection (a) are fulfilled, the proposed class must also satisfy at least 14 one of the separate standards in Rule 23(b). See Fed. R. Civ. P. 23(b) (providing three 15 circumstances which support a class action). 16 In the R&R, Judge Denney recommends that the Court deny Plaintiff’s Motion to 17 Certify because Plaintiff has not satisfied the second and fourth prerequisites set out in 18 Rule 23(a)—that is, the requirements to show questions of law or fact common to the 19 class and to show the representative parties will fairly and adequately protect the interests 20 of the class. (ECF No. 47 at 3-6.) Applying de novo review, the Court denies the Motion 21 to Certify, but does so without prejudice, finding that an analysis under Rule 23(a) 22 implicates important questions which may merit further elaboration beyond the briefing 23 on the underlying Motion—especially with regard to the typicality factor set forth in Rule 24 23(a)(3), which is not the primary focus of the R&R, Objection, or Response. 25 The Court first concludes that the factual circumstances Judge Denney identifies 26 under an analysis of commonality, see Fed. R. Civ. P. 23(a)(2), may more directly go to 27 6At least one of these cases has subsequently been dismissed for failure to pay 28 the filing fee or file a complete application to proceed in forma pauperis. See Thompson 2 demonstrate that the class members ‘have suffered the same injury.’” Dukes, 564 U.S. at 3 349-50 (quoting General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 157 4 (1982)). It is not sufficient that “they have all suffered a violation of the same provision of 5 law.” Id. at 350. Rather, the “common contention . . . must be of such a nature that it is 6 capable of classwide resolution—which means that determination of its truth or falsity will 7 resolve an issue that is central to the validity of each one of the claims in one stroke.” Id. 8 In his Objection, however, Plaintiff correctly notes that injuries need not be truly 9 identical to support commonality. (ECF No. 50 at 5-6.) Some discrepancy in impact 10 between prisoners does not, by itself, defeat the common injury requirement to the extent 11 Plaintiff seeks to bring class constitutional claims against Sergeant Walker and Doe 12 Senior Staff members for their decisions during a single event. Courts have regularly 13 found—including in the prison context—that class actions raising constitutional 14 challenges regarding a defendant’s conduct may satisfy the commonality requirement. 15 See, e.g., Parsons v. Ryan, 754 F.3d 657 (9th Cir. 2014) (finding commonality satisfied 16 for state prisoners’ Eighth Amendment declaratory and injunctive relief claims related to 17 conditions of confinement and deficiencies in medical services, because prisoners 18 alleged statewide and systemic exposure to harm); Cameron v. Bouchard, 462 F.Supp.3d 19 746 (E.D. Mich. 2020) (finding at least one common question existed for prisoners 20 alleging that a county sheriff had acted with deliberate indifference to the risks of COVID- 21 19, regarding conditions in the county jail), vacated on other grounds, 815 Fed. Appx. 978 22 (6th Cir. 2020). See also 7A Charles A. Wright & Arthur R. Miller, Fed. Prac. & Pro. Civ. 23 § 1763.1 (4 ed. 2024) (“The key in many of these cases is whether there is evidence that 24 defendant engaged in a common course of conduct directed at all the plaintiffs or whether 25 there is a common unlawful policy that has injured the class as a whole.”). 26 In the instant case, Plaintiff alleges specific unconstitutional conduct stemming 27 from a single primary incident. He does not appear to be merely attempting to aggregate 28 individual claims of mistreatment, and the Court hesitates to conclude based on the 2 Gonzalez v. U.S. Immigr. and Customs Enf’t, 975 F.3d 788 (9th Cir. 2020). However, the 3 Court shares Judge Denney’s concern regarding differences in factual circumstances 4 between named and unnamed class members. (ECF No. 47 at 4-5.) Some of these 5 factual circumstances also appear to implicate the requirement under Rule 23(a)(3) that 6 “the claims and defenses of the representative parties are typical of the claims or 7 defenses of the class.” See also 7A Fed. Prac. & Pro. Civ. at § 1764 (collecting cases 8 and noting that typicality may be at issue in “actions in which the legal or factual position 9 of the representatives is markedly different from that of other members of the class even 10 though common issues of fact or law are present”). Compare Parsons, 754 F.3d (finding 11 typicality), with Gustafson v. Polk County, Wis., 226 F.R.D. 601 (W.D. Wis. 2005) (finding 12 no typicality in a Section 1983 action involving strip searches at a county jail, where the 13 nature of the searches was inconsistent). Here, Plaintiff alleges that while some prisoners 14 were exposed to hours of sun on the prison field, the “C-Wing men” returned to their unit 15 after approximately an hour outside, and others were allowed to access shade and relief. 16 (ECF Nos. 20, 47 at 5.) And class members suffered varying injuries that may have other 17 causes, rather than the heat incident. Lyons alleged that he suffered second-degree 18 burns that led to skin cancer, but the other named class members suffered different kinds 19 of injuries, ranging from migraine headaches to worsening vertigo. Moreover, some 20 alleged class members may have disability-based claims based on multiple legal theories, 21 and varied damages calculations may be required. In short, taken together with 22 commonality, whether the typicality requirement is satisfied presents a close question, 23 but Lyons has not demonstrated that he meets these prerequisites in his pro se filings. 24 Judge Denney further concludes that under Rule 23(a)(4), the proposed named 25 plaintiffs are “not qualified to act as class representatives as they are unable to fairly 26 represent and adequately protect the interests of the class,” primarily because a pro se 27 plaintiff may not appear as an attorney for others in a class action. (ECF No. 47 at 5-6.) 28 See Fed. R. Civ. P. 23(a)(4). It is indeed true that as a pro se plaintiff, Lyons may not 2 1962). However, as explained below, the Court will sua sponte appoint pro bono counsel. 3 Accordingly, the Court will adopt Judge Denney’s recommendation to deny Plaintiff’s pro 4 se Motion, but the denial will be without prejudice.7 5 B. Referral to the Pro Bono Program 6 Considering the complexity of the class action issue alongside the nature of the 7 allegations in Plaintiff’s Complaint, the parties’ respective filings, and the R&R at this 8 stage of the litigation, the Court finds that exceptional circumstances merit the 9 appointment of pro bono counsel.8 10 Courts have discretion to designate counsel under 28 U.S.C. § 1915(e)(1) in 11 exceptional circumstances. See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.1991). 12 Determining whether exceptional circumstances exist requires evaluating “the likelihood 13 of success on the merits [and plaintiff's ability] to articulate his claims pro se in light of the 14 complexity of the legal issues involved.” Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 15 1983). Here, Plaintiff has demonstrated at least some likelihood of success on the merits 16 of his own claims, and class certification is a complex legal question intertwined with the 17 allegations and relief requested in the Complaint. Moreover, Lyons’ claims relate to a 18 defined event that impacted numerous Nevada prisoners, and a determination as to any 19 appropriate relief may itself be complex and have broad impacts, especially as high 20 7The Court again notes that a class action inquiry must also meet one of the 21 standards in Fed. R. Civ. P. 23(b). Judge Denney did not reach a 23(b) analysis in the R&R. 22 8In its screening order, the Court denied Plaintiff’s original motion for appointment 23 of counsel without prejudice, finding that based on the initial filings, Plaintiff had not demonstrated exceptional circumstances or complex claims justifying appointment of 24 counsel. (ECF No. 4 at 12.) Plaintiff subsequently filed a second motion for appointment of counsel for class action purposes (ECF No. 21), and Defendants opposed the second 25 motion “to the extent [Lyons] seeks counsel solely to gain certification of a class action,” arguing that the new motion presented no new exceptional circumstance and should be 26 treated as a motion for reconsideration (ECF No. 30 at 1). Judge Denney denied Plaintiff’s second motion without prejudice, without reaching the parties’ substantive arguments, 27 providing that Plaintiff could renew the request if the Court were to grant the Motion to Certify. (ECF No. 45.) At this stage of the litigation, however, the Court finds it appropriate 28 to use its discretion to appoint counsel. 2 Accordingly, the Court sua sponte refers this case to the Pro Bono Program 3 adopted in General Order 2019-07 for the purpose of identifying pro bono counsel. The 4 scope of the pro bono appointment will be limited to evaluating the appropriateness of a 5 renewed motion to certify a class action and/or pursue other collective relief related to the 6 2021 heat incident at NNCC, and thus to Plaintiff’s claims to the extent they extend to a 7 class of prisoners.10 8 Finally, the Court further adopts Judge Denney’s recommendation to deny 9 Plaintiff’s motion to stay pending class certification (ECF No. 46) as moot. However, the 10 Court will stay this case pending appointment of pro bono counsel and until after the 11 setting of a status conference. 12 III. CONCLUSION 13 The Court notes that the parties made several arguments and cited to several 14 cases not discussed above. The Court has reviewed these arguments and cases and 15 determines that they do not warrant discussion as they do not affect the outcome of the 16 motions before the Court. 17 It is therefore ordered that Plaintiff’s Objection (ECF Nos. 50, 51) to Judge 18 Denney’s Report and Recommendation (ECF No. 47) is overruled. 19 It is further ordered that Judge Denney’s Report and Recommendation (ECF No. 20 47) is accepted and adopted only for the reasons and to the extent described in this order. 21 9In their response to Plaintiff’s earlier motion to appoint counsel for class 22 certification purposes, Defendants argued that there is “no evidence in the record to suggest Lyons is incapable of representing himself.” (ECF No. 30 at 3.) In addition, they 23 turn to an unreported district-court holding that a plaintiff’s desire to certify a class does not qualify as an exceptional circumstance, despite the “Catch-22 situation” created by 24 “denying [pro se plaintiffs] appointment of counsel because they appear able to articulate their claims, and then denying them class certification because they are not capable of 25 litigating a class action without the assistance of counsel.” Goolsby v. Cate, Case No. 1:13-CV-00119-GSA-PC, 2013 WL 2403385, at *3 (E.D. Cal. May 31, 2013). The Court 26 finds Goolsby and other district court cases reaching similar conclusions unpersuasive, considering the particular posture and allegations in this case which make the 27 circumstances exceptional.

28 10If and when pro bono counsel is appointed, the Court will set a status conference. 1 It is further ordered that Plaintiff's motion for certification of a class action (ECF No. 2 || 20) is denied without prejudice, with leave to file a renewed motion for class certification 3 || or to take other appropriate action through appointed pro bono counsel as set out in this 4 || order. 5 It is further ordered that the Court sua sponte refers this case to the Pro Bono 6 || Program adopted in General Order 2019-07 for appointment of pro bono counsel for the 7 || limited purpose described in this order. By referring this case to the Program, the Court 8 || is not expressing an opinion as to the merits of the case. Following the appointment of 9 || pro bono counsel, the Court will set a status conference. 10 It is further ordered that Plaintiff's motion to stay case pending class certification 11 || (ECF No. 46) is denied as moot. 12 It is further ordered that this case is stayed pending appointment of pro bono 13 || counsel and the setting of a status conference. 14 The Clerk of Court is directed to forward this order to the Pro Bono Liaison. 15 DATED THIS 24" Day of January 2025.

17 MIRANDA M. DU 18 UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28