Robson Xavier Gomes, et al. v. Acting Secretary, U.S. Department of Homeland Security, et al.

2020 DNH 072

• Court: District Court, D. New Hampshire
• Decided: May 4, 2020
• Docket: 20-cv-453-LM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Robson Xavier Gomes, et al.

v. Civil No. 20-cv-453-LM Opinion No. 2020 DNH 072 Acting Secretary, U.S. Department of Homeland Security, et al.

O R D E R

Robson Xavier Gomes, Jose Nolberto Tacuri-Tacuri, and

Darwin Aliesky Cuesta-Rojas bring this petition for habeas

corpus pursuant to 28 U.S.C. § 2241 and a complaint for

declaratory and injunctive relief on behalf of themselves and a

putative class of civil immigration detainees housed at the

Strafford County Department of Corrections (“SCDOC”). They

claim that respondents, the Acting Secretary of the United

States Department of Homeland Security, Acting Field Director of

Immigration and Customs Enforcement, and the Superintendent of

SCDOC, have violated the putative class members’ Fifth Amendment

Due Process rights by creating or allowing policies and

practices at SCDOC, or the lack thereof, that put class members’

health at substantial risk of harm.

Pending before the court are petitioners’ amended

complaint, motion for preliminary injunctive relief and

expedited discovery, emergency motion for expedited bail hearings, and motion to certify the proposed class. At a

hearing on May 1, 2020, the court orally granted petitioners’

motion for expedited bail hearings for a group of medically

vulnerable putative class members. Those bail hearings are

scheduled to begin today. At a telephone conference this

morning, the court informed the parties that it intended to

provisionally certify the proposed class for the purpose of

conducting those bail hearings. Respondents objected to the

notion of provisional class certification generally but did not

develop specific argument in opposition to provisional

certification in this case. The court will provisionally

certify the proposed class for the limited purpose of holding

expedited bail hearings for class members.

STANDARD OF REVIEW

To obtain class certification, the petitioner must

establish the four prerequisites of Federal Rule of Civil

Procedure 23(a). See Amchem Prod., Inc. v. Windsor, 521 U.S.

591, 613-14 (1997); Smilow v. Sw. Bell Mobile Sys., Inc., 323

F.3d 32, 38 (1st Cir. 2003). Rule 23(a) states four threshold

certification requirements applicable to all class actions: (1)

numerosity; (2) commonality; (3) typicality; and (4) adequacy.

See Fed. R. Civ. P. 23(a); Amchem, 521 U.S. at 613. In addition

2 to Rule 23(a)’s threshold requirements, a party seeking

certification must also show that the action falls into one of

the categories outlined in Rule 23(b). Amchem, 521 U.S. at 614.

Petitioners seek to certify under Rule 23(b)(2). Rule 23(b)(2)

allows class treatment when “the party opposing the class has

acted or refused to act on grounds that apply generally to the

class, so that final injunctive relief or corresponding

declaratory relief is appropriate respecting the class as a

whole.” Fed. R. Civ. P. 23(b)(2).

At this juncture, the court will provisionally certify the

class for the purpose of holding expedited bail hearings—a form

of preliminary and emergency relief in the context of this case.

See Zepeda Rivas v. Jennings, No. 20-CV-02731-VC, 2020 WL

2059848, at *1, 3 (N.D. Cal. Apr. 29, 2020) (provisionally

certifying class of civil immigration detainees to facilitate

expedited bail hearings); Savino v. Souza, No. CV 20-10617-WGY,

2020 WL 1703844, at *3 (D. Mass. Apr. 8, 2020) (same); cf.

Fraihat v. U.S. Immigration & Customs Enf’t, No.

EDCV191546JGBSHKX, 2020 WL 1932570, at *15 (C.D. Cal. Apr. 20,

2020) (provisionally certifying class for the purpose of

granting preliminary injunctive relief). Provisional

certification is also necessary because respondents have not yet

filed a response to petitioners’ motion to certify the class.

3 “Provisional” certification does not lower the bar with

respect to the Rule 23(a) and (b) standards; the court must

conduct a rigorous inquiry and satisfy itself that the putative

class meets those requirements. See Tolmasoff v. Gen. Motors,

LLC, No. 16-11747, 2016 WL 3548219, at *6 (E.D. Mich. June 30,

2016); R.I.L-R v. Johnson, 80 F. Supp. 3d 164, 180 (D.D.C.

2015). The court’s “provisional” determination is made,

however, with the understanding that it “may be altered or

amended before final judgment.” Fed. R. Civ. P. 23(c)(1)(C);

see also R.I.L-R, 80 F. Supp. 3d at 180.

DISCUSSION

Petitioners propose certification of the following class:

“all individuals who are now held in civil immigration

detention” at SCDOC. Doc. no. 14-1 at 9. The proposed class

representatives are the named petitioners: Gomes, Tacuri-Tacuri,

and Cuesta-Rojas. Respondents agreed to release Tacuri-Tacuri

and Cuesto-Rojas with conditions on or about April 22, 2020.

Doc. no. 22. Gomes remains detained at SCDOC. The court will

address the Rule 23(a) and Rule 23(b)(2) requirements below.

4 I. Rule 23(a) Requirements

A. Numerosity

Rule 23(a)(1) requires that “the class is so numerous that

joinder of all members is impracticable.” Fed. R. Civ. P.

23(a)(1). “No minimum number of plaintiffs is required to

maintain a suit as a class action, but generally if the named

plaintiff demonstrates that the potential number of plaintiffs

exceeds 40, the first prong of Rule 23(a) has been met.” Clough

v. Revenue Frontier, LLC, No. 17-CV-411-PB, 2019 WL 2527300, at

*3 (D.N.H. June 19, 2019) (quoting Garcia-Rubiera v. Calderon,

570 F.3d 443, 460 (1st Cir. 2009)). Petitioners allege that

there are over 60 civil immigration detainees housed at SCDOC.

Indeed, Superintendent Brackett testified at the May 1 hearing

that there are approximately 75 civil detainees. Even if this

number fluctuates somewhat due to the ingress and egress of

detainees, it satisfies the numerosity requirement.

B. Commonality

Rule 23(a)(2) asks whether there are “questions of law or

fact common to the class.” Fed. R. Civ. P. 23(a)(2).

Commonality requires proof that all class members “have suffered

the same injury.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338,

350 (2011) (internal quotation marks omitted). This means that

the “claim must depend upon a common contention.” Id. That

5 “common contention” must be “capable of classwide resolution—

which means that determination of its truth or falsity will

resolve an issue that is central to the validity of each one of

the claims in one stroke.” Id. This “same injury” test “can be

satisfied by an instance of the defendant’s injurious conduct,

even when the resulting injurious effects—the damages—are

diverse.” In re Deepwater Horizon, 739 F.3d 790, 810-11 (5th

Cir. 2014); see also Parsons v. Ryan, 754 F.3d 657, 678 (9th

Cir. 2014).

Here, petitioners allege that respondents’ facility-wide

failure or inability to facilitate social distancing at SCDOC

violates their Fifth Amendment Due Process rights in two ways:

respondents’ conduct is deliberately indifferent to a

substantial risk of harm to their health; and the conditions of

confinement at SCDOC amount to punishment. The court will focus

here only on the deliberate indifference theory.

To prove a deliberate indifference claim, a petitioner must

show: (1) the alleged deprivation of medical care is objectively

“sufficiently serious”; and (2) the defendant must have a

“sufficiently culpable state of mind” that shows “deliberate

indifference to inmate health or safety.” Leite v. Bergeron,

911 F.3d 47, 52 (1st Cir. 2018) (internal quotation marks

omitted). A defendant is deliberately indifferent if he

6 subjectively “knows of and disregards an excessive risk to

inmate health or safety.” Id. (internal quotation marks

omitted). “To show such a state of mind, the plaintiff must

provide evidence that the defendant had actual knowledge of

impending harm, easily preventable, and yet failed to take the

steps that would have easily prevented that harm.” Id.

(internal quotation marks omitted).

Petitioners claim that respondents have subjected the

putative class to the same injury: policies and practices (or

the lack thereof) that put their health at substantial risk of

harm by inhibiting their ability to practice social distancing

during the COVID-19 pandemic. Petitioners’ deliberate

indifference claim thus presents at least two common questions:

whether each respondent had actual knowledge of the impending

harm or risk posed to the putative class by COVID-19; and

whether each respondent failed to take steps that would have

easily prevented the harm to detainees. See Fraihat, 2020 WL

1932570, at *18 (finding commonality satisfied to provisionally

certify civil detainee class based on common question of whether

respondents’ systemwide actions or inactions constituted

deliberate indifference); Wilson v. Williams, No. 4:20-CV-00794,

2020 WL 1940882, at *7 (N.D. Ohio Apr. 22, 2020) (identifying

common question as whether respondents’ failure to create safe

7 conditions violated inmates’ rights); Savino, 2020 WL 1703844,

at *6 (identifying common question as whether the government

disregarded the risk posed by COVID-19 to civil detainees by

failing to take reasonable measures). Petitioners need only

articulate a single common question to meet the commonality

requirement. Dukes, 564 U.S. at 359. That requirement is met

here.

C. Typicality

Next, plaintiffs must show “typicality” or that their

claims or defenses are “typical of the claims or defenses of the

class.” Fed. R. Civ. P. 23(a)(3). To be typical, the

representative plaintiffs’ claims must “arise from the same

event or practice or course of conduct that gives rise to the

claims of other class members, and [be] based on the same legal

theory.” Garcia-Rubiera, 570 F.3d at 460 (internal quotation

marks, brackets, and ellipsis omitted). The representative

plaintiffs’ claims and those of absent class members need not be

identical; they need only “share the same essential

characteristics.” Ouadani v. Dynamex Operations E., LLC, ___ F.

Supp. 3d. ___, 2019 WL 4384061, at *8 (D. Mass. Sept. 13, 2019)

8 The named petitioners’ claims here are typical of the

class. They arise from the same course of conduct: respondents’

facility-wide actions or inactions that have allegedly failed to

make living conditions at SCDOC safe during the COVID-19

pandemic. And their claims are all based on the legal theory

that respondents have violated their Fifth Amendment Due Process

rights, either by being deliberately indifferent to the

substantial risk of harm created by the virus, or by subjecting

them to punishment. Although the impact each class member may

experience from respondents’ alleged failings may differ,

respondents’ alleged systemwide failure to implement adequate

health and safety measures applies equally across the class.

The typicality requirement is met here.

D. Adequacy

Rule 23(a)(4) requires that the “representative parties

will fairly and adequately protect the interests of the class.”

Fed. R. Civ. P. 23(a)(4). This requirement has two prongs: (1)

“that the interests of the representative party will not

conflict with the interests of any of the class members”; and

that chosen counsel “is qualified, experienced and able to

vigorously conduct the proposed litigation.” Clough, 2019 WL

2527300, at *4 (internal quotation marks omitted).

9 With respect to the first prong, the court has not

identified any way in which the proposed class representatives’

interests conflict with those of the unnamed class members.

Turning to the second prong of the adequacy inquiry, the court

is convinced that proposed class counsel, Gilles Bissonette of

the American Civil Liberties Union of New Hampshire and Scott

O’Connell of Nixon Peabody, LLP, have sufficient experience and

qualifications to serve as class counsel. See doc. nos. 14-2 &

14-3.

II. Rule 23(b)(2) Requirement

An action may be maintained under Rule 23(b)(2) if “the

party opposing the class has acted or refused to act on grounds

that apply generally to the class, so that final injunctive

relief or corresponding declaratory relief is appropriate

respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2).

“The key to the (b)(2) class is the indivisible nature of the

injunctive or declaratory remedy warranted—the notion that the

conduct is such that it can be enjoined or declared unlawful

only as to all of the class members or as to none of them.”

Dukes, 564 U.S. at 360 (internal quotation marks omitted). The

court concludes that a uniform, indivisible remedy would be

possible in this case. Such remedy might take the form of a

10 declaratory judgment finding that respondents’ policies or

practices violate civil detainees’ Fifth Amendment Due Process

rights, or an injunction requiring SCDOC to reduce the

population of detainees (and/or other inmates) to a level that

allows for adequate social distancing. See Savino, 2020 WL

1703844, at *8; Fraihat, 2020 WL 1932570, at * 20.

CONCLUSION

For the following reasons, the court provisionally

certifies the proposed class of all individuals who are now held

in civil immigration detention at SCDOC for the purpose of

facilitating expedited bail hearings of those individuals.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

May 4, 2020

cc: Counsel of record.