UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Robson Xavier Gomes
v. Civil No. 20-cv-453-LM Opinion No. 2021 DNH 046 P Acting Secretary, U.S. Department of Homeland Security, et al.
ORDER
Robson Xavier Gomes1 brings this habeas corpus petition pursuant to 28
U.S.C. § 2241. Petitioner Gomes seek declaratory and injunctive relief on behalf of
himself and a putative class of civil immigration detainees housed by Immigration
and Customs Enforcement (“ICE”) at the Strafford County House of Corrections
(“SCHOC”).2 Petitioner claims that, by creating or allowing policies and practices at
SCHOC that put civil immigration detainees’ health at substantial risk of harm from
COVID-19, respondents Acting Secretary of the United States Department of
Homeland Security, Acting Field Director of Immigration and Customs Enforcement,
and Superintendent of SCDOC have violated the putative class members’ Fifth
Amendment due process rights. On May 4, 2020, the court provisionally certified the
1 Former named petitioners Jose Nolberto Tacuri-Tacuri, and Darwin Aliesky Cuesta-Rojas have been released from detention and are no longer parties to this action.
2 The court uses the acronym “SCHOC” to refer to the jail facility (Strafford County House of Corrections) and “SCDOC” to refer to the county department that operates the jail (Strafford County Department of Corrections). putative class for the limited purpose of holding expedited bail hearings for class
members. See doc. no. 50.
Now before the court is petitioner’s motion (doc. no. 14) seeking final
certification of the proposed class. For the reasons discussed below, the court finds
that the prerequisites for class certification set forth in Federal Rule of Civil
Procedure 23 are satisfied. Accordingly, petitioner’s motion is granted, and the court
certifies the proposed class of SCHOC civil immigration detainees.
STANDARD OF REVIEW
To obtain class certification, a petitioner must establish all four of the
prerequisites set forth at Federal Rule of Civil Procedure 23(a) and must
additionally show that the action falls into at least one of the categories outlined at
Rule 23(b). 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). The Rule 23(a)
threshold certification requirements applicable to all class actions are:
(1) numerosity; (2) commonality; (3) typicality; and (4) adequacy. See Fed. R. Civ. P.
23(a); Amchem, 521 U.S. at 613. To determine whether the Rule 23(a) threshold
requirements have been met, a “district court must undertake a rigorous analysis.”
In re Nexium Antitrust Litig., 777 F.3d 9, 17 (1st Cir. 2015) (citations and internal
quotation marks omitted); see also Gintis v. Bouchard Transp. Co., 596 F.3d 64, 66
(1st Cir. 2010). This may require the court “to probe behind the pleadings” to
determine whether the party seeking certification has affirmatively demonstrated
2 that the Rule 23(a) requirements have been satisfied “in fact.” Wal-Mart Stores, Inc.
v. Dukes, 564 U.S. 338, 350 (2011) (citations and emphasis omitted).
As to the Rule 23(b) categories, petitioners here seek certification 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). To obtain certification under Rule
23(b)(2), the moving party must demonstrate: (1) that “the defendant’s behavior
similarly affected all members of the prospective class,” 5 James Wm. Moore et al.,
Moore’s Federal Practice Civil § 23.43 (2007); (2) that the injury suffered by the
prospective class may be remedied through injunctive relief, see Dukes, 564 U.S. at
360; (3) that the prospective class seeks predominantly injunctive as opposed to
monetary relief, see id.; and (4) that the injunctive relief sought by the prospective
class is applicable to all prospective class members without requiring substantial
individual tailoring, see Donovan v. Philip Morris USA, Inc., 268 F.R.D. 1, 27 (D.
Mass. 2010).
If the court certifies a prospective class of petitioners, it must also appoint
class counsel. See Fed. R. Civ. P. 23(g)(1). “Class counsel must fairly and
adequately represent the interests of the class.” Fed. R. Civ. P. 23(g)(4). In addition,
before appointing class counsel, the court must consider the following factors:
(i) the work counsel has done in identifying or investigating potential claims in the action;
(ii) counsel’s experience in handling class actions, other complex litigation, and the types of claims asserted in the action; 3 (iii) counsel’s knowledge of the applicable law; and
(iv) the resources that counsel will commit to representing the class. . . .
Fed. R. Civ. P. 23(g)(1)(A).
DISCUSSION
Petitioner seeks certification of the class of all individuals who are now held in
civil immigration detention at SCHOC. See doc. no. 14-1 at 9. Gomes, the sole
remaining named petitioner, is the proposed class representative. In their objection
to class certification (doc. no. 129), respondents challenge whether the proposed class
satisfies the commonality requirements of Rule 23(a)(2) and 23(b)(2) and the
typicality requirements of Rule 23(a)(3). In their supplemental memorandum in
support of their objection (doc. no. 236), respondents additionally challenge whether
the proposed class satisfies the numerosity requirements of Rule 23(a)(1). The court
addresses the Rule 23 requirements below.
I. The Rule 23(a) Threshold Requirements
A. Numerosity
Rule 23(a)(1) requires that the putative class be “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-
4 411-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)). Moreover, the party seeking
certification need not establish a precise number of putative class members, as the
court may draw “reasonable inferences from the facts presented to find the requisite
numerosity.” McCuin v. Sec’y of Health & Human Servs., 817 F.2d 161, 167 (1st Cir.
1987).
Here, the record establishes that the number of civil immigration detainees
housed at SCHOC has fluctuated significantly, while generally remaining over 40.
See doc. no. 14-1 at 8 (alleging that over 60 civil immigration detainees are housed at
SCHOC); doc. no. 115 at 123:3-12, 125:23-25, 126:6-10 (testimony of Superintendent
Brackett indicating that approximately 75 civil immigration detainees were housed
at SCHOC as of May 1, 2020). Respondents note, however, that as of August 2020
petitioner had proposed “only 19 individuals for bail hearings,” two of which had
been withdrawn, doc. no. 236 at 2, and on that basis argue that joinder of the
individuals within the prospective class would be practicable.
The court disagrees. First, where, as here, “only declaratory and injunctive
relief is sought for a class,” plaintiffs need not identify all members of the proposed
class, warranting “relaxation of the requirement of a rigorous demonstration of
numerosity.” McCuin, 817 F.2d at 167. Second, where, also as here, “an influx of
future members will continue to populate the class . . . at indeterminate points in the
future,” joinder becomes not merely impracticable but effectively “impossible.” Reid
v. Donelan, 297 F.R.D. 185, 189 (D. Mass. 2014) (citing William B. Rubenstein,
Newberg on Class Actions § 3.15 (5th ed. 2013)) (emphasis in original); see also doc. 5 no. 115 at 111:22-25 (Superintendent Brackett testifying to “high turnover” in the
SCHOC population). The court therefore finds that the number of current and
future members of the putative class exceeds 40 persons and that joinder of the
potential class members would be impracticable. Accordingly, petitioner has met his
burden as to the threshold numerosity requirement. See Fed. R. Civ. P. 23(a)(1).
B. Commonality
Rule 23(a)(2) requires the existence of “questions of law or fact common to the
class.” Fed. R. Civ. P. 23(a)(2). Commonality is a “low bar,” and total commonality
of questions among the putative class members is not required. In re New Motor
Vehicles Canadian Export Antitrust Litigation, 522 F.3d 6, 19 (1st Cir. 2008).
Courts generally afford Rule 23(a)(2) a “permissive application.” Id. (quoting 7A
Charles A. Wright et al., Federal Practice and Procedure § 1763 (3d ed. 2005)).
To establish commonality, a plaintiff must show that all putative class
members “have suffered the same injury.” Dukes, 564 U.S. at 350 (citation and
internal quotation marks omitted).3 This means that the putative class members’
“claims must depend upon a common contention. . . of such a nature that . . . its
truth or falsity will resolve an issue that is central to the validity of each one of the
claims in one stroke.” Id. “What matters to class certification . . . is not the raising
of common questions—even in droves—but, rather, the capacity of a classwide
3 This “same injury” test can be satisfied by one instance of “injurious conduct, even when the resulting injurious effects—the damages—are diverse.” In re Deepwater Horizon, 739 F.3d 790, 810-811 (5th Cir. 2014); see also Parsons v. Ryan, 754 F.3d 657, 678 (9th Cir. 2014). 6 proceeding to generate common answers apt to drive the resolution of the litigation.”
Id. (emphasis supplied and citations and internal quotation marks omitted).
Common questions need not predominate; a single common question is sufficient to
satisfy the requirements of Rule 23(a)(2). See id. at 359.
The “low bar” of commonality is easily cleared here. The thrust of petitioner’s
complaint is that conditions of confinement shared by all civil immigration
detainees at the facility put the putative class members’ health at substantial risk
of harm by inhibiting their ability to practice social distancing during the COVID-
19 pandemic. Petitioner asserts that respondents’ conduct in maintaining those
conditions violates putative class members’ Fifth Amendment due process rights to
freedom from cruel treatment and freedom from unlawful punishment. As the court
determined in its May 14, 2020 order provisionally certifying the proposed class,
petitioner’s due process claim thus presents at least two common questions:
whether each respondent had actual knowledge of the risk posed to the putative
class members and whether each respondent failed to take reasonable steps to
mitigate that risk. See doc. no. 50 at 7; see also Leite v. Bergeron, 911 F.3d 47, 52
(1st Cir. 2018) (setting forth the elements of a Fifth Amendment due process claim
premised on violation of the right to freedom from cruel treatment). Moreover,
because petitioner seeks an order declaring unconstitutional the conditions of
confinement for all civil immigration detainees held at SCHOC and enjoining
respondents to establish a process for reviewing bail applications for the putative
class members, class treatment would have the capacity to generate at least some
“common answers apt to drive the resolution of the litigation.” Dukes, 564 U.S. at 7 350. The court therefore finds that petitioner has met his burden in connection
with Rule 23(a)(2). See e.g., Reid v. Donelan, 297 F.R.D. 185, 189-191 (D. Mass.
2014); Savino v. Souza, 453 F. Supp. 3d 441, 450-452 (D. Mass. 2020).
Respondents’ contrary arguments provide no grounds for disturbing the
court’s finding. Respondents offer four reasons why, in their view, individual
differences among putative class members foreclose a finding of commonality:
(1) putative class members have different and individually particularized risk factors
and levels of risk with respect to COVID-19, (2) conditions of confinement at SCHOC
have varied over time, (3) putative class members are detained under an array of
different statutes and therefore are subject to different periods of mandatory
detention and different conditions for release, and (4), relatedly, class members differ
from one another in terms of flight risk and potential dangerousness to the
community if released.
As to respondents’ first argument, the court acknowledges that putative class
members do not share risk factors in common but notes that individualized risk
factors do not modify the common conditions of confinement, common legal
questions, or common requested declaratory and injunctive relief. Moreover, as
noted, the existence of individual differences among putative class members does not
foreclose a finding of commonality so long as least one common issue is raised. See
Dukes, 564 U.S. at 359.
Respondents’ second argument—that conditions of confinement have varied
over time—fails even to raise a material individual difference among putative class
members. Although conditions of confinement may have varied over time, at all 8 times those conditions applied similarly to all putative class members then in
detention.
Respondents fare no better with their third and fourth arguments, premised
on differences in the statutory authority pursuant to which putative class members
are detained and the factors bearing on whether their release could be appropriate.
If petitioner sought only the immediate release of all putative class members, and no
other relief, these final arguments would militate against finding that class
treatment could promote resolution of a question common to all class members.
However, because petitioner in fact seeks declaratory and injunctive relief equally
applicable to all putative class members—namely, the court’s declaration that
conditions of confinement at SCHOC violate class members’ constitutional rights and
order enjoining respondents to create procedures for expediting class members’ bail
hearings—the individual differences respondents identify do not foreclose a finding
of commonality.
C. Typicality
The third threshold requirement of Rule 23(a)—typicality—requires the class
representative to show that his claims are typical of the putative class members’
claims. Fed. R. Civ. P. 23(a)(3). To be typical, the representative’s 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);
see also Gen. Tel. Co. of the SW. v. Falcon, 457 U.S. 147, 156 (1982) (“a class 9 representative must be part of the class and possess the same interest and suffer the
same injury as the class members”) (citation and internal quotation marks omitted).
The representative plaintiff’s 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, 405 F. Supp. 3d 149, 162 (D. Mass. 2019).
Respondents challenge typicality on essentially the same grounds as they
challenge commonality. That is, respondents argue that because not all putative
class members are identical in terms of health risk factors, the statutory authority
for their detention, or the danger they represent to the community if released,
petitioner cannot be typical of the class. However, petitioner’s claims arise out of
precisely the same conduct as those of the absent members, and petitioner suffered
the same injury as all absent class members. All class members’ claims, including
petitioner’s, arise out of the same legal theory: that respondents have violated their
Fifth Amendment due process rights through deliberate indifference to the
substantial risk of harm created by their conditions of confinement or by subjecting
them to punitive conditions of confinement. Petitioner has established typicality.
D. Adequacy
The last of the Rule 23(a) threshold requirements is adequacy, which requires
that the class representative will “fairly and adequately protect the interests of the
class.” Fed. R. Civ. P. 23(a)(4). To satisfy the adequacy requirement, petitioner must
show that “the interests of the representative party will not conflict with the
interests of any of the class members,” and that “counsel chosen by the 10 representative party is qualified, experienced, and able to vigorously conduct the
proposed litigation.” Andrews v. Bechtel Power Corp., 780 F.2d 124, 130 (1st Cir.
1985). Respondents do not challenge the certifiability of the proposed class on
adequacy grounds.
Nothing in the record before the court suggests any conflict of interest
between petitioner and the absent class members. Moreover, as discussed in greater
detail below in connection with the requirements of Rule 23(g), petitioner’s chosen
counsel (Gilles Bissonnette of the American Civil Liberties Union of New Hampshire
and Scott O’Connell of Nixon Peabody, LLP) have the requisite qualifications and
experience to litigate petitioner’s claims on a class basis. See doc. nos. 14-2, 14-3.
Accordingly, the court finds that the adequacy requirement is satisfied.
II. Rule 23(b)(2)
As noted, petitioner seeks certification of the proposed class under Rule
23(b)(2). 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). This requires the party seeking
certification to demonstrate: (1) that “the defendant’s behavior similarly affected all
members of the prospective class,” 5 James Wm. Moore et al., Moore’s Federal
Practice Civil § 23.43 (2007); (2) that the injury suffered by the prospective class is
subject to remedy through injunctive relief, see Dukes, 564 U.S. at 360; (3) that the
prospective class seeks predominantly injunctive as opposed to monetary relief, see 11 id.; and (4) that the injunctive relief sought by the prospective class is applicable to
all prospective class members without requiring substantial individual tailoring, see
Donovan, 268 F.R.D. at 27.
For the reasons discussed above in connection with Rule 23(a)(2)’s
commonality requirement, petitioner has shown that respondents’ complained-of
conduct has affected all members of the proposed class similarly—all civil
immigration detainees at SCHOC are subject to the same conditions of confinement.
Moreover, as also noted above, the putative class here seeks solely declaratory and
injunctive relief.
As to whether the putative class claims are subject to remedy through uniform
injunctive relief, “[t]he 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 (citation and internal quotation marks
omitted). Thus, “Rule 23(b)(2) applies only when a single injunction or declaratory
judgment would provide relief to each member of the class.” Id.
Here, a uniform, indivisible remedy could appropriately issue in connection
with the putative class’s claims. First, the court could issue the requested
declaration that the conditions of confinement of civil immigration detainees at
SCHOC violate those detainees’ Fifth Amendment due process rights. Second, the
court could enjoin respondents to create a process to expedite bail hearings for class
members. Third, the court could enjoin respondents either to reduce the detainee
population at SCHOC or otherwise to modify conditions of confinement to permit 12 adequate social distancing. Because non-individualized declaratory or injunctive
remedies could provide relief to all class members, class certification under Rule
23(b)(2) is appropriate. See id.; see also, e.g., Savino, 453 F. Supp. 3d at 452; Reid,
297 F.R.D. at 193.
III. Appointment of Class Counsel Under Rule 23(g)
The final matter for the court to address is appointment of class counsel under
Rule 23(g). The court must consider the work petitioner’s chosen counsel has done so
far in identifying and investigating class claims, counsel’s class action and complex
litigation experience, counsel’s knowledge of the applicable law, and counsel’s
available resources for pursuing this litigation. See Fed. R. Civ. P. 23(g)(1)(A). In
addition, counsel “must fairly and adequately represent the interests of the class.”
Fed. R. Civ. P. 23(g)(4).
Here, counsel has ably identified and investigated the potential claims at
issue. Moreover, counsel has significant experience in litigating class action and
other complex matters, as well as extensive familiarity with the constitutional
questions raised here. See doc. nos. 14-2, 14-3. The history of this litigation reveals
that counsel will devote appropriate resources to this action and will fairly and
adequately represent the class. Accordingly, the court appoints petitioner’s counsel
as class counsel in this matter.
13 CONCLUSION
For all the reasons discussed above, petitioner’s motion for class certification
(doc. no. 14) is granted. The court certifies the class of all individuals held in civil
immigration detention at SCHOC. Petitioner Gomes is appointed class
representative, and Gilles Bissonnette of the American Civil Liberties Union of New
Hampshire and Scott O’Connell of Nixon Peabody, LLP are appointed as class
counsel.
SO ORDERED.
Landya McCafferty United States District Judge March 5, 2021
cc: Counsel of record.