Shook v. Board of County Com’rs of County of El Paso, Not Reported in F.Supp.2d (2006)

2006 WL 1801379 Only the Westlaw citation is currently available.
United States District Court, D. Colorado.
Mark SHOOK and Dennis Jones, on behalf of themselves and all others similarly situated,
Plaintiffs, and
James Vaughan, Shirlen Mosby, Thomas Reinig, Lottie Elliott, and Victor Siegrist, Intervenor Plaintiffs, v.
The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF EL PASO and Terry Maketa, in his official capacity as Sheriff of El Paso County,
Defendants.
Civil Action No. 02–cv–00651–RPM. | June 28, 2006.
Attorneys and Law Firms
David Cyrus Fathi, National Prision Project, Washington, DC, Mark Silverstein, American Civil Liberties Union, Thomas S. Nichols, Davis, Graham & Stubbs LLP, Denver, CO, Plaintiffs and Intervenor Plaintiffs.
Gordon Lamar Vaughan, Sara Ludke Cook, Vaughan & Demuro, Jay Allen Lauer, El Paso County Attorney’s Office, Colorado Springs, CO, for Defendants.
Opinion
ORDER DENYING CLASS CERTIFICATION
RICHARD P. MATSCH, Senior District Judge.
*1 In the five complaints filed in this action, the original plaintiffs and intervening plaintiffs (“plaintiffs”) have alleged sufficient facts to support their claims that the protection against cruel and unusual punishment granted to them by the Eighth Amendment to the United States Constitution, made applicable to state and local governments by the Fourteenth Amendment, was violated by acts and omissions of employees and agents of the Sheriff of El Paso County, Colorado while the plaintiffs

were inmates housed in the El Paso County Jail. More particularly, the allegations identify each of these plaintiffs as persons with serious mental health needs which were not met, resulting in harm to them.They do not seek damages for such harm; they ask only for declaratory and injunctive relief on behalf of a class, comprising “all persons with serious mental health needs who are now, or in the future will be, confined in the El Paso County Jail,” or alternatively, “all persons who are now, or in the future will be, confined in the El Paso County Jail.”

The motion for certification of a class under Fed.R.Civ.P. 23(b)(2), filed June 17, 2005, is opposed by the defendants and the issues have been adequately briefed. The motion is denied because the plaintiffs have not met the requirements of Rule 23(a)(2) and (3). The questions of law or fact are not sufficiently common to either of the classes for which certification is sought and the claims and defenses are not typical of either class as identified. Additionally, the plaintiffs have not shown that the defendants have acted or refused to act on grounds generally applicable to either of the putative classes in a manner that would make appropriate the broad injunctive relief or corresponding declaratory relief requested as necessary to support certification under Rule 23(b)(2).

The Jail houses recent arrestees, persons awaiting trial, and persons convicted and sentenced to terms of two years or less. The Jail comprises two buildings, both located in Colorado Springs—the Criminal Justice Center and the Metro Detention Center. The five complaints1 allege the following facts in support of the plaintiffs’ individual claims: Plaintiff Mark Shook asserts that he suffers from a form of autism known as Asperberger’s Syndrome, as well as bipolar disorder. He alleges that before his arrival at the Jail in fall 2001, he regularly took two anti-psychotic drugs prescribed by his psychiatrist. He complains that after he arrived at the Jail he had no access to any medications, and when after three weeks he finally did see a doctor, the doctor would not prescribe his regular medications because they were not on the Jail’s list of approved medications.

1

The five complaints are (1) the class action complaint

of plaintiffs Mark Shook and Dennis Jones, filed on

April 2, 2002, (2) the complaint in intervention of

James Vaughan and Shirlen Mosby; (3) the plaintiffs’

supplemental class action complaint; (4) the complaint

in intervention of Thomas Reinig and Lottie Elliott, and

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Shook v. Board of County Com’rs of County of El Paso, Not Reported in F.Supp.2d (2006)

(5) the complaint in intervention of Victor Siegrist. James Robillard, one of the original plaintiffs, moved to withdraw and was dismissed from this action on December 3, 2002.
Plaintiff Dennis Jones states that he has been diagnosed as bipolar and suffers from depression, anxiety, and suicidal thoughts. He asserts that before he entered the Jail in September 2001, he was prescribed two drugs to control his symptoms. Mr. Jones complains that after he was confined, Jail officials denied him access to any medications for nearly a month. He alleges that when he finally obtained a prescription, he received only one of the drugs he needed and the dosage was insufficient to provide relief for his symptoms. In addition, he complains that the Jail staff who monitored the levels of his medication took blood samples too soon or too long after he received his medication for the tests to be accurate.
*2 Plaintiff-intervenor Shirlen Mosby states that she is bipolar and has experienced numerous attacks of anxiety, depression, feelings of hopelessness, and suicidal thoughts. She alleges that during her confinement, Jail officials improperly placed her in special detention cells and belittled her condition. She also alleges that she was able to attempt suicide three times because of inadequate supervision at the Jail.
Plaintiff-intervenor James Vaughan asserts that he is bipolar and suffers from nearly continuous conditions of depression, anxiety, and “racing thoughts.” He claims that he was deprived of any medication for many days after he arrived at the Jail as a pretrial detainee, and that he had inadequate access to psychiatric care while there. In addition, he complains that he did not receive the blood tests necessary to monitor the anti-depressant medication he required.
Plaintiff-intervenor Thomas Reinig alleges that he has a history of psychiatric hospitalizations and diagnoses dating to the early 1990s, and has been diagnosed with schizoaffective disorder and paranoid schizophrenia. His was incarcerated in the Jail as a pretrial detainee in September 2003, and for a period between March and June 2004 was sent to the state psychiatric hospital in Pueblo, Colorado. At the Jail he was prescribed a variety of psychiatric medications and listed as a potential suicide risk. Mr. Reinig complains of having been confined eight times in a toiletless special detention cell, sometimes while restrained with handcuffs and leg irons. He also

complains that several times Jail staff-subjected him to shocks from a taser and threatened him with the use of the taser on additional occasions. In addition, he alleges that Jail authorities have strapped him into the Jail’s restraint chair, and on other occasions have threatened the use of the restraint chair.2

2

Mr. Reinig is the prisoner identified as “Prisoner No.

13” in the Supplemental Complaint. (¶¶ 37–38).

Plaintiff-intervenor Lottie Elliott states that she arrived at the Jail on November 18, 2004, after having spent three days on the psychiatric ward of St. Francis Hospital after a suicide attempt on November 15, 2004. She alleges that she was released to the Jail with a prescription written by the hospital psychiatrist for the administration of an anti-psychotic medication. She complains that the Jail’s medical staff changed her medications without consulting her or warning her of possible side effects of the new drugs. After she complained for several days, Jail staff permitted her family to pick up the previously written prescription form from her property, fill it at a community drugstore, and bring the medications to the Jail. She alleges that ten days passed before she began receiving the medications prescribed by the hospital psychiatrist, and the dosage administered by Jail staff was inadequate. Ms. Elliott alleges that her requests for additional medication were unanswered until she met with the Jail’s psychiatrist and by then she had been incarcerated for approximately four weeks and had attempted suicide.3

3

Ms. Elliott is the prisoner identified in the supplemental

complaint as “Prisoner No. 7.” (¶¶ 2223).

*3 Plaintiff-intervenor Victor Siegrist alleges that he suffers from schizoaffective paranoid disorder (bipolar type) and seizures. His complaint states that he has been confined in the Jail since April 27, 2005, except for periods when he was in Memorial Hospital and in the Colorado Mental Health Institute at Pueblo for reasons related to this mental health problems. He alleges that during his confinement at the Jail he was deprived of necessary medications. He also alleges that he was held for periods of time in cells having no sink or toilet. He complains of being forced to attend court appearances in a humiliating suicide gown and of being subjected to shocks from a taser. In addition, he alleges that the defendants failed to protect him adequately from the risk of self-harm. He asserts that at the Mental Health Institute
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Shook v. Board of County Com’rs of County of El Paso, Not Reported in F.Supp.2d (2006)

at Pueblo, he received medications that stabilized his condition, but upon his return to the Jail, his medication was changed without his having been examined by a doctor. He maintains that he observed and experienced inadequate mental health staffing at the Jail.
The complaint and supplemental complaint describe various incidents that occurred at the Jail between 1999 and 2005 involving persons identified as “Prisoners 1–14.” The plaintiffs allege that those incidents show administrative deficiencies, such as inadequate staffing and training, that increase the risk of mental and physical harm to mentally ill inmates, including the risk of self-harm.
The plaintiffs seek an order enjoining the defendants to:
• provide sufficient numbers of mental health and custody staff, with adequate training, to provide for the serious mental health needs of class members;
• provide safe and appropriate housing for prisoners with serious mental health needs;
• discontinue use of the “special detention cells” to house prisoners exhibiting signs of mental illness;
• provide inpatient psychiatric care for prisoners whose serious mental health needs require it;
• cease using restraints, pepper spray, and electroshock weapons (“tasers”) against prisoners exhibiting signs of mental illness in circumstances that pose a substantial risk of serious harm to such prisoners;
• implement an adequate system to provide appropriate medication to prisoners whose serious mental health needs require it and to monitor the effects of that medication; and
• provide adequate screening and precautions to prevent self-harm and suicide.
(Supplemental Compl. ¶ 68).
The plaintiffs seek to represent the proposed class, and they bear the burden of proving that the requirements of Rule 23 are satisfied. Reed v. Bowen, 849 F.2d 1307, 1309 (10th Cir.1988). To determine whether this action should proceed as a class action, the court must first determine whether the four threshold requirements of Rule 23(a) are met. Adamson v. Bowen, 855 F.2d 668,

675 (10th Cir.1998). Rule 23(a) provides:
*4 One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder 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.
If those requirements are met, “[the court] must then examine whether the action falls within one of the three categories of suits set forth in Rule 23(b).” Adamson, 855 F.2d at 675. Plaintiffs seek certification pursuant to Rule 23(b)(2), which requires that “the party opposing the class has acted or refused to act on grounds generally applicable to the class as a whole.”
There is no need to identify those who are or may become members of a class for certification under Rule 23(b)(2), which does not require notification, but there must be a sufficient definition to develop the contours for identifying the issues sought to be adjudicated and determine whether those issues are within the court’s jurisdictional and institutional competence to grant the relief requested.
The plaintiffs’ claims are sufficient to state a claim for damages under 42 U.S.C. § 1983 making officials liable for constitutional violations caused by them. They do not request damages. Injunctive relief is a recognized form of equitable relief under that statute. The form of the injunction must comply with the requirements of Rule 65(d), as follows:
Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained; and is binding only upon the parties to the
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Shook v. Board of County Com’rs of County of El Paso, Not Reported in F.Supp.2d (2006)

action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.
Fed.R.Civ.P. 65(d). The plaintiffs recognize that limitation and allege that class certification is necessary because the plaintiffs are no longer in the Jail facilities and their individual exposure to the claimed violations is not likely to reoccur. They contend that if future violations are to be prevented, the court must enter its orders under Rule 23(b)(2).
There are three flaws in the class approach to the claims sought to be adjudicated in this civil action. First, the inherent complexities in determining what persons present a need for treatment of mental disorders while confined. Second, the limitations on this court’s ability to adjudicate the factual and legal issues in a manageable way. Third, the inability of the court to fashion the remedy requested, given the requirements of Rule 65(d) and the jurisdictional limitations imposed by the Prison Litigation Reform Act (“PLRA”) in 18 U.S.C. § 3626.
*5 That statute did not alter or amend Rule 23 but it did restrict the court’s ability to provide equitable relief of the kind requested in this case. Accepting that there maybe prospective relief for the benefit of a class of persons beyond the named plaintiffs, the restriction clearly stated is that the order must be narrowly drawn and “extend no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.”
The plaintiffs candidly state that their purpose in pursuing this class action is to determine the “scope of prisoner’s constitutional rights to mental health services” and identify it as the legal question that is common to the entire class of “Jail prisoners with serious mental health needs.” That statement misapprehends the established law. Implicit in that statement is the assumption that the Constitution affirmatively creates a right to mental health services or treatment. It does not. The Constitution prohibits denial of treatment for medical needs, including mental health needs, of which jail officials are aware.
The interest protected by the Eighth Amendment is highly individualistic and case specific in character. Broadly

stated, the courts have interpreted its prohibition of cruel and inhuman punishment to equate the failure to provide medical treatment for serious medical needs of prisoners with such punishment, if that failure results from a deliberate indifference on the part of the prison officials. Estelle v. Gamble, 429 U.S. 97, 104 (1976). Proof of a violation of this protection requires a showing that the prisoner has some particular need for medical treatment that is “serious” and that the prison officials were deliberately indifferent to it. Id.; see also Riddle v. Mondragon, 83 F.3d 1197, 1203 (10th Cir.1996) “A medical need is serious if it is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention.” Riddle, 83 F.3d at 1202 (internal quotations and citations omitted).
Deliberate indifference is more than the failure to provide that attention. There must be a showing that the officials have knowledge that the prisoner has a condition requiring special treatment or care and, with such knowledge, disregard it resulting in excessive risk to the prisoner’s health. In an action for damages, the plaintiff must show actual physical injury resulting from—that is caused by—the failure of care. If treatment is provided but it is below the relevant standard of care, there is no constitutional claim. Deliberate indifference is more than negligence. A claim for relief under § 1983 is based on the Constitutional violation, not the law of torts. Under the PLRA, there is no justiciable claim if there is no physical injury. “No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury.” 42 U.S.C. § 1997e(e).
*6 To proceed with the plaintiff’s claims in this case would require an expansion of this well established law to interpret the Eighth Amendment as mandating prison officials to take affirmative action to prevent or protect against the possibility of an occurrence of a violation in the future. When determining whether an action should proceed as a class action, the court should refrain from evaluating the merits of the plaintiffs’ claims, Anderson v. City of Albuquerque, 690 F.2d 796, 799 (10th Cir.1982), but the court may consider whether the plaintiffs’ definition of the class and their statement of the common legal questions differ from established law. Furthermore, the court may consider the nature of the plaintiffs’ claims and how the proof or defense of such claims relates to the standards of Rule 23.
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Shook v. Board of County Com’rs of County of El Paso, Not Reported in F.Supp.2d (2006)

Medical needs in the physical sense are more identifiable than those arising from mental or emotional conditions because medical needs in the physical sense are largely identifiable objectively. In contrast, mental disorders are more difficult to categorize, and indeed the term “mental disorder” is not subject to precise boundaries. The Manual of the American Psychiatric Association states, “although this manual provides a classification of mental disorders, it must be admitted that no definition adequately specifies precise boundaries for the concept of ‘mental disorder.’ “ American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, xxi (4th ed. 1994) (“DSM–IV”). The American Psychiatric Association recognizes that its descriptions of behaviors and symptoms that categorize various mental disorders classify disorders, not classes of people. The DSM–IV states, “A common misconception is that a classification of mental disorders classifies people, when actually what are being classified are disorders that people have.” DSM–IV at xxii. That Manual specifically avoids using classifications of mental disorders to refer to classes of people, emphasizing instead the individual nature of mental disorders. See id. That reference work further cautions that its descriptions of behaviors characterizing various mental disorders “may not be wholly relevant to legal judgments....” DSM–IV at xxvii.
The terminology used by the plaintiffs in their pleadings does not match the language of the DSM–IV. Most of the named plaintiffs are identified as having some form of Bipolar Disorder. That is but one of the 16 major diagnostic classes in the Manual and it is subclassified into 4 types of disorders (Bipolar I Disorder, Bipolar II Disorder, Cyclothymia, and Bipolar Disorder Not Otherwise Specified) with separate criteria sets. See DSM–IV at 35066. Consider the complexity of this description of the Diagnostic Features of Bipolar I Disorder:
There are six separate criteria sets for Bipolar I Disorder: Single Manic Episode, Most Recent Episode Hypomanic, Most Recent Episode Manic, Most Recent Episode Mixed, Most Recent Episode Depressed, and Most Recent Episode Unspecified. Bipolar Disorder I, Single Manic Episode, is used to describe individuals who are having a first episode of mania. The remaining criteria sets are used to specify the nature of the current (or most recent) episode in individuals who have had recurrent mood episodes.
*7 The essential feature of Bipolar I Disorder is a clinical course that is characterized by the occurrence

of one or more Manic Episodes ... or Mixed Episodes.... Often individuals have also had one or more major Depressive Episodes.... Episodes of Substance–Induced Mood Disorder (due to the direct effects of a medication, other somatic treatments for depression, a drug of abuse or toxin exposure) or of Mood Disorder Due to a General Medical Condition do not count toward a diagnosis of Bipolar I Disorder. In addition, the episodes are not better accounted for by a Schizoaffective Disorder and are not superimposed on Schizophrenia, Schizophreniform Disorder, Delusional Disorder, or Psychotic Disorder Not Otherwise Specified. Bipolar I Disorder is subclassifed in the fourth digit of the code according to whether the individual is experiencing the first episode (i.e., Single Manic Episode) or whether the disorder is recurrent. Recurrence is indicated by either a shift in the polarity of the episode or an interval between episodes of at least 2 months without manic symptoms. A shift in the polarity is defined as a clinical course in which a Major Depressive Episode evolves into a Manic Episode or a Mixed Episode or in which a Manic Episode or a Mixed Episode evolves into a Major Depressive Episode. In contrast, a Hypomanic Episode that evolves into a Manic Episode or a Mixed Episode, or a Manic Episode that evolves into a Mixed Episode (or vice versa), is considered to be only a single episode. For recurrent Bipolar I Disorders, the nature of the current (or most recent) episode can be specified (Most Recent Episode Hypomanic, Most Recent Episode Manic, Most Recent Episode Mixed, Most Recent Episode Depressed, Most Recent Episode Unspecified).
DSM–IV at 35051. Manic, mixed, or major depressive episodes may range from mild to severe. Id. at 351. According to the DSM–IV, the majority of individuals with Bipolar I Disorder return to a fully functional level between episodes. Id. at 352.
Although not specifically mentioned in Rule 23, a prerequisite of a class action is that there must be a class. 7A Charles Alan Wright, Arthur R. Miller and Mary Kay Kane, Federal Practice & Procedure § 1760 (3d ed.2005). While it is true that notice to members of a Rule 23(b)(2) class is not required, every Rule 23 class must have a defined boundary. Certification of a nebulous class would result in numerous procedural problems. Compliance with class-wide injunctive relief would be impossible to monitor, if it would even be possible to enter an order meeting the requirements of Rule 65(d). In addition, certification of a vaguely defined class would lead to uncertainty about the preclusive effect of the
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Shook v. Board of County Com’rs of County of El Paso, Not Reported in F.Supp.2d (2006)

action.
The plaintiffs seek certification of a class comprised of “all persons with serious mental health needs, who are now, or in the future will be, confined in the El Paso County Jail,” but the term “serious mental health needs” is vague. The plaintiffs have not offered any definition of that term. There are many varieties and degrees of mental disorders, and those who operate Jails are not required to offer treatment or alter their custody procedures for every psychological problem exhibited by prisoners. See, e.g., Riddle, 83 F.3d at 1204 (plaintiffs who claimed that prison lacked adequate treatment for prisoners suffering from deviant sexual compulsions failed to satisfy the Estelle requirement of showing “serious medical need”).
*8 As discussed above, “serious medical need” has been defined as a condition that has been diagnosed by a physician as mandating treatment or one that is so obvious that a lay person would recognize it as needing medical attention, but that standard is of little use in defining the class in this action. The Constitution does not require that each Jail inmate receive an extensive mental health evaluation by a physician or mental health professional at the time of intake. Whether an inmate is obviously suffering from a serious medical condition due to a mental disorder depends on the events and circumstances giving rise to that prisoner’s claim of deliberate indifference. “All persons with serious mental health needs who are now, or in the future will be, confined in the El Paso County Jail” is a group that is too amorphous to proceed as a class, even one under Rule 23(b)(2).
The plaintiffs have proposed an alternative class defined as “all persons who are now, or in the future will be, confined in the El Paso County Jail.” The fact that the plaintiffs have proposed an alternative class definition suggests that they foresee the procedural problems that will inevitably result if the class were to be defined as “all persons with serious mental health needs, who are now, or in the future will be, confined in the El Paso County Jail.” The plaintiffs’ alternative class definition, however, is too broad. There are no allegations that the defendants’ actions or inactions violate the Eighth Amendment rights of every Jail inmate. The plaintiffs do not claim, for example, that the use of a taser or pepper spray to subdue a prisoner constitutes cruel and unusual punishment in every instance, their complaint is about the use of such devices to restrain prisoners who suffer from severe mental illness. The issue is then whether the proposed class of “all persons with serious mental health needs who

are now, or in the future will be, confined in the El Paso County Jail” meets the requirements of Rule 23.
Rule 23(a)(1) requires that the class be so numerous that joinder of all members is impracticable. The plaintiffs allege that the El Paso County Jail regularly houses 1,000 inmates or more, and its population has been as high as 1,312. The plaintiffs cite national statistics showing that approximately 20% of jail prisoners have some kind of mental illness. They assert that this statistic shows that Rule 23(a)(1)’s numerosity requirement is met. Their proposed class, however, is comprised of those with serious mental health needs. That group is not defined. The plaintiffs instead emphasize “impracticability,” arguing that the fluid nature of a Jail population renders individual claims impracticable. The plaintiffs assert that “unless a class is certified, the conditions under which mentally ill and suicidal prisoners are confined at the El Paso County Jail are effectively immunized from judicial review.” The public records of this court contradict that assertion. Conditions at the El Paso County Jail have been and are the subject of individual actions.4 The question is whether the plaintiffs have satisfied all of the requirements of Rule 23.

4

The supplemental complaint includes allegations

regarding the suicides of Jail prisoners Brian Bennett

and Marca Wilson. Civil Action No.

03–cv–00492–RPM, an action for damages against the

Board of County Commissioners of El Paso County

and others arising out of the death of Brian Bennett was

dismissed based on stipulations submitted on March 17,

2004 and April 27, 2004. Civil Action No.

03–cv–01919–RPM, an action for damages brought by

the statutory heir of Marca Wilson against the Board of

County Commissioners of El Paso County and others is

pending in this court.

*9 Rule 23(a)(2) requires that there be questions of law or fact common to the class. This prerequisite is met if there is single issue of law or fact common to the class. J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1288 (10th Cir.1999). Certification under Rule 23(b)(2) of a claim seeking the application of a common policy is not precluded merely because the claims of individual class members differ factually, but when the claims of the named plaintiffs arise from diverse factual situations and the remedies they seek are based on diverse legal theories, commonality is lacking. See Hart, 186 F.3d at 1288–90.
The facts common to the class are that the plaintiffs and
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Shook v. Board of County Com’rs of County of El Paso, Not Reported in F.Supp.2d (2006)

putative class members suffer from mental illness and were confined in the El Paso County Jail. Other than those common features, the circumstances giving rise to the class members’ claims vary greatly. These differences are significant because the facts relevant to the determination of whether an Eighth Amendment violation occurred varies depending on the type of violation alleged. Plaintiff Reinig, for example, complains of being shocked by a taser. Determination of this complaint would require inquiry into whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously or sadistically to cause harm. See Hudson v. McMillian, 503 U.S. 1, 67 (1992); Mitchell v. Maynard, 80 F.3d 1433, 1440 (10th Cir.1996). Plaintiff Mosby complains of being held in a toiletless special detention cell. A claim of that type requires evaluation of the duration and severity of the alleged deprivation. See Craig v. Eberly, 164 F.3d 490, 495 (10th Cir.1998). Lottie Elliott alleges that she was able to attempt suicide several times. A claim for failure to protect against the risk of self-harm involves factual issues about the prison official’s knowledge of the inmate’s mental condition and the care and security provided to the inmate. See Barrie v. Grand County, Utah, 119 F.3d 862, 864 (10th Cir.1997). Evaluation of the claims asserted on behalf of the class would require examination of the unique circumstances surrounding each incident alleged to constitute a constitutional deprivation.
The proposed class suffers from the same deficiency as the proposed class in Hart. In that case, the United States Court of Appeals for the Tenth Circuit Court of Appeals stated, “Other than all being disabled in some way and having had some sort of contact with New Mexico’s child welfare system, no common factual link joins these plaintiffs.” 186 F.3d at 1289. Similarly, in this action, there is no single question of fact common to the class.
Rule 23(a)(2)’s commonality requirement may also be met by showing a common question of law, but commonality requires more than that the claims of class members be bound by a broad legal theme. Rule 23(a)(2) is not satisfied by generalized allegations of policy failures or systemic deficiencies. See Hart, 186 F.3d at 1289. The plaintiffs have not identified any common legal question applicable to the class, rather they assert an assortment of alleged constitutional violations. No single policy, custom, procedure or alleged administrative deficiency unites the claims of the plaintiffs or the putative class members. An inmate’s suicide or suicide attempt does not by itself show deliberate indifference on the part of the Jail’s staff and administrators, nor does the

use of pepper spray or tasers necessarily show an Eighth Amendment violation. Trial of the claims asserted on behalf of the class would require separate evaluation of all of the circumstances surrounding each incident, including the behavior exhibited by the prisoner, the knowledge of prison staff regarding the prisoner’s condition, and the response of the Jail staff.No single claim or legal issue could be resolved on a class basis.
*10 The plaintiffs contend that “scope of prisoners’ constitutional rights to mental health services is a legal question common to the entire class of Jail prisoners with serious mental health needs.” (Pls.’ mot. for class certification at 7). The plaintiffs’ objective is to have this court prescribe Jail practices for the humane treatment of mentally ill prisoners, but that broad objective does not satisfy the commonality requirement. The plaintiffs’ request for class-wide remedies does not mean there are legal questions common to the entire class. The plaintiffs are seeking relief far wider than that necessary to redress the constitutional torts alleged.
Rule 23(a)(3) requires that “the claims or defenses of the representative parties [be] typical of the claims of the class.” The claims may arise from differing fact situations, but must be “based on the same legal or remedial theory.” Adamson, 855 F.2d at 676. This standard “is closely related to the test for the common-question prerequisite in subdivision (a)(2).” 7A Charles Alan Wright, Arthur R. Miller and Mary Kay Kane, Federal Practice & Procedure § 1764.
The plaintiffs fail to satisfy the typicality prerequisite for the same reasons that they fail to satisfy the commonality prerequisite. The plaintiffs’ claims and the claims of the putative class members arise under the Eighth Amendment, but their claims are not based on any single course of conduct, and there is no legal issue which, if resolved, would control the claims of the class. The plaintiffs request seven categories of injunctive relief on behalf of the class, but such relief is requested on the basis of an assortment of claims.
Rule 23(a)(4) requires that “the representative parties will fairly and adequately protect the interests of the class.” To satisfy this prerequisite, the plaintiffs must show that their interests are aligned with those of the persons they seek to represent and that they will vigorously prosecute the class through qualified counsel. Rutter & Wilbanks Corp. v. Shell Oil Co., 314 F.3d 1180, 1187–88 (10th Cir.2002). The plaintiffs are represented by qualified counsel associated with the American Civil Liberties Union of
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Shook v. Board of County Com’rs of County of El Paso, Not Reported in F.Supp.2d (2006)

Colorado and the ACLU National Prison Project. Plaintiffs and their counsel have vigorously pursued this case since it was commenced in 2002, and no conflicts between plaintiffs or their counsel and other class members have been identified. In this regard the plaintiffs have shown that they would be adequate class representatives, but they have failed to satisfy Rule 23(a)’s commonality and typicality requirements, and they have not adequately defined the class.
The plaintiffs have not met the threshold requirements of Rule 23(a). For many of the same reasons, the plaintiffs fail to satisfy the requirement that “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.” Fed.R.Civ.P. 23(b)(2). Significantly, for a class to be certified pursuant to Rule 23(b)(2), the opposing party’s actions or inactions must be “generally applicable” to the class.
*11 As discussed above, the plaintiffs do not complain of a written policy or standard procedure or practice to which all class members are subject. The plaintiffs do not complain of lack of conduct that is premised on grounds applicable to the entire class. Instead they contend that a number of separate incidents collectively show administrative deficiencies amounting to deliberate indifference. The problem is that there are unique factual circumstances relevant to each incident alleged by the plaintiffs, and determination of whether the alleged incidents show a policy or custom of deliberate indifference would require separate assessment of each incident alleged by the plaintiffs as an example of such indifference. Notably, the allegations with respect to the persons identified as Prisoners 1–14 arise from distinct acts. The defendants’ responses to those claims draw from each prisoner’s Jail history and medical files. The individual nature of the asserted claims and the individual nature of the defenses to those claims renders this action unmanageable as a class action. “The vehicle of class litigation must ultimately satisfy practical as well as purely legal considerations.” Shook v. El Paso County, 386 F.3d 963, 973 (10th Cir.2004).
The facts alleged in the complaints could support individual claims for relief, but those allegations do not show that final injunctive relief or declaratory relief with respect to the class as a whole is appropriate. The plaintiffs request this court to enter an order addressing matters such as the propriety of using tasers and pepper spray to subdue mentally ill prisoners, the propriety of

temporarily holding mentally ill prisoners in special detention cells, when and by whom mental health evaluations and treatment should be provided, the types of psychiatric medication that should be made available to prisoners, how such medication should be prescribed and administered, the numbers of mental health and custody staff that should be employed at the Jail, and the type of training that should provided to Jail employees. Some of these matters, such as the use of pepper spray and tasers, cannot be addressed prospectively on a class-wide basis. Whether the use of such devices with particular prisoners comports with the Eighth Amendment must be evaluated on the basis of individual circumstances, and if a violation occurred, a remedy to address the harm suffered by the affected prisoner or prisoners can be fashioned. The broad relief sought by the plaintiffs shows that they are not simply seeking to redress past constitutional torts and prevent there recurrence, rather they want this court to set standards for Jail practices with respect to mentally ill prisoners. This court is not the appropriate decision maker to determine what constitutes “adequate” training for Jail staff, or what medications should be on the Jail’s list of approved medications, or how many employees are needed for “sufficient” Jail staffing. This court must respect its constitutional boundaries and refrain from usurping the role of prison administrators.
*12 The plaintiffs argue that the Tenth Circuit’s opinion in Ramos v. Lamm, 639 F.2d 559 (10th Cir.1980) shows that a Rule 23(b)(2) class action is an appropriate method for litigating disputes about the constitutionality of prison conditions. Ramos v. Lamm must be read within the context of its facts and subsequent developments in the law. Ramos depended upon a factual showing that the State of Colorado was operating a prison facility that was so outdated and poorly managed that all aspects of confinement there warranted condemnation as cruel and inhuman punishment, requiring an order that it be closed unless remedial measures were taken to bring it into conformity with court directed standards. Those standards were altered on appeal. There can be no doubt that the orders entered in that case are well beyond the limitations of the PLRA and no equivalent remedy could now be provided. Additionally, both the Tenth Circuit and the Supreme Court have subsequently more clearly identified what can be characterized as the deliberate indifference that gives rise to a claim of violation of the Eighth Amendment.
The PLRA did not add new elements to the class certification process, and the PLRA’s limitations on broad prospective relief are not determinative of the class
8

Shook v. Board of County Com’rs of County of El Paso, Not Reported in F.Supp.2d (2006)

certification issue, but neither can those limitations be ignored. If this court does not have the authority to grant the injunctive relief requested, the purpose of proceeding as a class action is defeated. Rule 23(b)(2) necessarily presumes that the court has the power to grant “appropriate final injunctive relief or corresponding declaratory relief appropriate to the class as a whole.” Thus, the definition of the class is the critical element in determining what relief is appropriate.
When subdivision (b)(2) was added to Rule 23, one of its purposes was to facilitate class action suits seeking the enforcement of civil rights, but that historical fact does not mean that every purported class action alleging

constitutional violations is suitable for class adjudication. Here the proposed class is vague, the claims of deliberate indifference arise from a variety of factual circumstances and legal theories, the plaintiffs’ claims are based on conduct not generally applicable to the class, and class-wide injunctive relief is not appropriate.
Based on the foregoing, it is
ORDERED that the plaintiffs’ motion for class certification is denied.
	  

9

 
 Case 1:02-cv-00651-RPM Document 121 Filed 09/22/06 USDC Colorado Page 1 of 1
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Senior District Judge Richard P. Matsch
Civil Action No. 02-cv-00651-RPM MARK SHOOK and DENNIS JONES, on behalf of themselves and all others similarly situated,
Plaintiffs and JAMES VAUGHAN, SHIRLEN MOSBY, THOMAS REINIG, and LOTTIE ELLIOTT, VICTOR SIEGRIST,
Intervenor-Plaintiffs, v. THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF EL PASO and TERRY MAKETA, in his official capacity as Sheriff of El Paso County,
Defendants. ____________________________________________________________________________________
ORDER OF DISMISSAL ____________________________________________________________________________________
The claim of Intervenor-Plaintiff Victor Siegrist having been dismissed by stipulation, it is
ORDERED that the motion to dismiss, filed by the defendants on July 14, 2006, is granted and this civil action is dismissed in its entirety.
DATED: September 22, 2006. BY THE COURT: s/Richard P. Matsch __________________________________ Richard P. Matsch, Senior District Judge

 
 Case 1:02-cv-00651-RPM Document 131 Filed 08/29/08 USDC ColoradoFILPEagDe 1 of 34 United States Court of Appeals Tenth Circuit

August 29, 2008

PUBLISH

Elisabeth A. Shumaker

Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MARK SHOOK and DENNIS JONES, on behalf of themselves and all others similarly situated,
Plaintiffs-Appellants,
and
JAMES VAUGHAN; SHIRLEN MOSBY; THOMAS REINIG; and LOTTIE ELLIOTT,
Intervenors-Plaintiffs-Appellants, v.
THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF EL PASO and TERRY MAKETA, in his official capacity as Sheriff of El Paso County,
Defendants-Appellees.
THE JUDGE DAVID L. BAZELON CENTER FOR MENTAL HEALTH LAW; CENTER FOR CHILDREN’S LAW AND POLICY; COLORADO CENTER ON LAW AND POLICY; COLORADO CROSS-DISABILITY COALITION; COLORADO LAWYERS COMMITTEE FOR CIVIL RIGHTS; THE LEGAL CENTER FOR PEOPLE WITH DISABILITIES AND OLDER

No. 06-1454

Case 1:02-cv-00651-RPM Document 131 Filed 08/29/08 USDC Colorado Page 2 of 34
PEOPLE; NATIONAL CENTER FOR YOUTH LAW; NATIONAL DISABILITY RIGHTS NETWORK; NATIONAL SENIOR CITIZENS LAW CENTER; PUBLIC JUSTICE,
Amici Curiae.
Appeal from the United States District Court for the District of Colorado
(D.C. No. 02-cv-00651-RPM-MJW)
Mark Silverstein, Legal Director, American Civil Liberties Foundation of Colorado, Denver, Colorado (David C. Fathi, National Prison Project for the ACLU Foundation, Inc., Washington, D.C., and Thomas S. Nichols, Davis Graham & Stubbs LLP, Denver Colorado with him on the briefs), for PlaintiffsAppellants. Gordon L. Vaughan, Vaughan & DeMuro (Sara Ludke Cook, Vaughan & DeMuro, and Jay A. Lauer, County Attorney of El Paso County, with him on the brief), Colorado Springs, Colorado, for Defendants-Appellees. Thomas J. Lyons and Andrew D. Ringel, Hall & Evans, L.L.C., Denver, Colorado, for Amicus Curiae Colorado Counties, Inc. Laura L. Rovner, Student Law Office, and Stephen Arvin, Stephanie Whalum and Margaret Yoder, Student Attorneys, University of Denver Sturm College of Law, Denver, Colorado, for Amici Curiae.
Before TYMKOVICH, GORSUCH, and HOLMES, Circuit Judges.
GORSUCH, Circuit Judge.
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Plaintiffs Mark Shook and Dennis Jones, along with several intervenors, appear before us for the second time to contest the district court’s denial of their motion to certify a class action consisting of all present and future m entally ill inmates at Colorado’s El Paso County Jail. In their first appeal, we held that in denying class certification the district court erred by relying on the jurisdictional limitations imposed by the Prison Litigation Reform Act (“PLRA”) to the total exclusion of the standards laid out in Federal Rule of Civil Procedure 23. The difficulty with the district court’s opinion, in our view, was that it conflated a merits analysis of the relief available to plaintiffs – relief potentially curtailed by the PLRA – with the threshold class certification requirements of Rule 23 – which are not affected by the PLRA. On remand, the district court again denied class certification, but did so this time with reference to Rule 23’s strictures. We find that the district court’s analysis of the Rule 23 framework is free of the legal errors we identified in its first effort, and although we might reach a different conclusion were we addressing the certification question in the first instance, we are unable to say that the district court abused its discretion in declining to certify the proposed class under Rule 23(b)(2).
I Filed pursuant to 42 U.S.C. § 1983, plaintiffs’ suit seeks declaratory and injunctive relief aimed at addressing a variety of conditions at the Jail alleged to violate the Eighth Amendment’s ban against cruel and unusual treatment, as
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incorporated against the states through the Fourteenth Amendment. Among other things, these alleged conditions include inadequate mental health care; insufficient protections against self-inflicted injuries and suicides; inadequate methods of distributing medication to inmates and screening for mental health issues at the time inmates are committed to the Jail; and the improper and overly broad use of special detention cells, restraints, and pepper spray against inmates. Aplt. App. at 198-99.
Plaintiffs offer allegations about their own treatment at the Jail and claim their treatment fairly represents the treatment class members generally receive at the Jail. The nature of their individual conditions and treatment, however, also serves to illustrate the range of the alleged mental health care issues at the Jail. For example, Mark Shook suffers from both Asperberger’s Syndrome and bipolar disorder. Prior to his incarceration at the Jail in 2001, Mr. Shook regularly took anti-psychotic medications prescribed by his psychiatrist. After being confined to the Jail, Mr. Shook alleges that he was denied access to his medications and medical care for three weeks. Shirlen Mosby, while suffering frommental illnesses similar to Mr. Shook, experiences suicidal tendencies apparently not shared by him. She alleges that her problems at the Jail stemmed, not from the failure to provide her with her medications, but from a failure to monitor her for potentially suicidal behavior.
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Thomas Reinig, who is bipolar with schizoaffective disorder and is also a paranoid schizophrenic, alleges yet a different set of violations by the Jail. Specifically, Mr. Reinig complains that he was confined in a special detention cell multiple times, sometimes while restrained with handcuffs and leg irons. Apparently unlike any of the other plaintiffs, he has also been subjected to electric shocks from a taser on several occasions, and in other instances has been threatened with similar treatment. Notably, although he has prescriptions for a variety of medications and has been listed as a suicide risk, Mr. Reinig does not appear to allege that he was denied his medications or inadequately supervised.
Finally, Lottie Elliott’s allegations cut across the groups before us, alleging denial and improper administration of prescription medication and improper supervision in light of her suicidal tendencies, but also adding an allegation of inadequate access to mental health professionals at the Jail itself. Ms. Elliott arrived at the Jail after spending three days on the psychiatric ward at St. Francis Hospital after a suicide attempt. While at the hospital, a psychiatrist saw Ms. Elliott daily and prescribed an anti-psychotic medication called Seroquel, to be taken morning, night, and “as needed.” Despite being released into the care of the Jail with this prescription in hand, medical staff at the Jail changed Ms. Elliott’s medications without consulting her or warning her of any possible side effects, and without allowing her to see a psychiatrist or physician despite her
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request. Eventually, Ms. Elliott attempted suicide, and only after that attempt did the Jail’s psychiatrist meet with her.1
In due course after bringing this suit, plaintiffs moved for class certification while defendants moved to dismiss the complaint. The district court ultimately denied both motions. With respect to the former, the district court denied class certification without providing any analysis of the factors relevant to class certification set forth in Fed. R. Civ. P. 23. Instead, the court focused entirely on the PLRA, reasoning that the relief plaintiffs sought was beyond its jurisdictional competence after the passage of the PLRA and that class certification is properly denied when the court lacks “the authority to order the prospective remedy requested.” Shook v. Bd. of County Comm’rs of County of El Paso, 216 F.R.D. 644, 647 (D. Colo. 2003). We reversed. Noting that “[t] he text of the PLRA says nothing about the certification of class actions,” though it does contain provisions discussing the administration of class actions once certified, we held that “the PLRA does not alter the class certification analysis under Rule 23.” Shook v. El Paso County, 386 F.3d 963, 970 (10th Cir. 2004) (“Shook I”). And because the PLRA left the traditional Rule 23 class certification standards intact, we held that the district court, which had neither analyzed Rule 23(a)’s
1 Mr. Reinig and Ms. Elliott did not intervene until after this case was remanded to the district court, and thus their allegations were not before the district court when it issued its first order. In addition to the details of the nam ed plaintiffs’ experiences at the Jail, the various complaints contain allegations about a number of other inmates, some identified by name and others anonymous.
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factors nor mentioned Rule 23(b)(2), “erred by not specifically addressing the traditional Rule 23 factors in denying class certification.” Id. at 972. We thus remanded for the district court to apply the Rule 23 framework in the first instance. Id. at 974. Furthermore, recognizing that courts have disagreed over whether manageability, an explicit consideration under Rule 23(b)(3), may be considered in determining whether to certify a class pursuant to Rule 23(b)(2), we proceeded to hold that “manageability is not categorically barred in Rule 23(b)(2) class certification decisions,”id. at 973, and we suggested that some of the “concerns leading the court to consider problems of identifying and managing the class” in its PLRA analysis might be relevant to considerations explicitly identified in Rule 23 itself, such as, inter alia, Rule 23(a)’s commonality or typicality requirements or Rule 23(b)’s requirements that defendants have acted “on grounds generally applicable to the class” and that the court be able “to provide injunctive relief to the class framed in the complaint,”id. at 973-74.
Before the district court again, plaintiffs renewed their motion for class certification pursuant to Rule 23(a) and (b)(2), proposing a class comprised of “[a]ll persons with serious mental health needs who are now, or in the future will be, confined in the El Paso County Jail.” Aplt. App. at 193. Alternatively, plaintiffs proposed an even broader class consisting of “all persons who are now, or in the future will be, confined in the El Paso County Jail.” Id. In their prayer for relief, plaintiffs sought an injunction establishing standards across a wide
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range of areas affecting mentally ill inmates. They asked that the Jail be enjoined to “provide sufficient numbers of mental health and custody staff, with adequate training”; “provide safe and appropriate housing for prisoners with serious mental health needs”; “discontinue the use of the ‘special detention cells’ to house prisoners exhibiting signs of mental illness”; “provide inpatient psychiatric care”; “cease using restraints, pepper spray, and electroshock weapons (‘tasers’) against prisoners exhibiting signs of mental illness in circumstances that pose a substantial risk of harm to such prisoners”; “implement an adequate system to provide appropriate medication to prisoners whose serious mental health needs require it and to monitor the effects of that medication”; and “provide adequate screening and precautions to prevent self-harm and suicide.” Id. at 117-18.
The district court again denied class certification. This time, the court held that plaintiffs had failed to satisfy either Rule 23(a)(2), (a)(3) or (b)(2). Shook v. Bd. of County Comm’rs of County of El Paso, 2006 WL 1801379, at *1 (D. Colo. 2006) (“D. Ct. Op.”). With respect to this last provision, the district court held that plaintiffs failed to bear their burden under Rule 23(b)(2) of showing that defendants acted on grounds generally applicable to the class, such that the declaratory and injunctive relief sought is appropriate respecting the class as a whole. Id. In particular, the district court noted the factual differences between the individual named plaintiffs’ situations, suggesting that because some plaintiffs were asserting claims for denial of medication, some for lack of supervision, and
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others for use of excessive force, there was no single policy or procedure to which all were subject. Similarly, the court held, this variation in fact patterns made injunctive relief on a class-wide basis inappropriate. Id. at *11. The court reasoned that many of the matters plaintiffs sought to have addressed, such as the use of tasers or restraints, could not be dealt with prospectively on a class-wide basis because the propriety of using such methods depended on the circumstances in which they were used, and those circumstances necessarily varied among class members. Id. And while some of the standards plaintiffs sought to have put in place did not depend on individual circumstance, the court expressed concern that it was not equipped to determine what constitutes “adequate” training or how many employees are “sufficient” to deal with a shifting number of mentally ill prisoners, id., and thus that it would be extraordinarily difficult to craft an injunction satisfying the specificity requirements of Fed. R. Civ. P. 65(d).2 Plaintiffs now appeal this decision, contending that the district court’s second order suffers many of the same defects as its first.
2 Rule 65(d)(1) provides that: Every order granting an injunction and every restraining order must (A) state the reasons why it issued; (B) state its terms specifically; and (C) describe in reasonable detail – and not by referring to the complaint or other document – the act or acts restrained or required.
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II When reviewing a decision to grant or deny certification, we are cognizant of the fact that, in this realm, the district court enjoys considerable discretion, and we may reverse a district court’s decision only for an abuse of that discretion. Reiter v. Sonotone Corp., 442 U.S. 330, 345 (1979); Adamson v. Bowen, 855 F.2d 668, 675 (10th Cir. 1988); Alba Conte and Herbert B. Newberg, 1Newberg on Class Action § 3:1 (4th ed.) (“Newberg”). When applying an abuse of discretion standard of review, we necessarily recognize that there may be no single right answer to the question at hand, but a range of possible outcomes sustainable on the law and facts, and we will “defer to the district court’s judgment so long as it falls within the realm of these rationally available choices.” United States v. McComb, 519 F.3d 1049, 1053 (10th Cir. 2007); Big Sky Network Canada, Ltd. v. Sichuan Provincial Gov’t, 533 F.3d 1183, 1186 (10th Cir. 2008) (The abuse of discretion standard “may appear opaque, but it is one we have long understood to mean that we will reverse a district court’s determination only if the court exceeded the bounds of the rationally available choices given the facts and the applicable law in the case at hand.”); In re Bueno, 248 B.R. 581, 582 (D. Colo. 2000) (Kane, J.) (an abuse of discretion standard implies a degree of “[d]iscretion invested in judges [to render] a decision based upon what is fair in the circumstances and guided by the rules and principles of law”).
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In this case, we believe the district court’s decision fell within the boundaries set out by Rule 23(b)(2), governing case law, and the facts as alleged3. While we very well may have made a different decision had the issue been presented to us as an initial matter, and while other district courts perhaps could have chosen, or could choose, to certify similar classes, we cannot say the district court’s assessment was beyond the pale.
A Rule 23(b)(2) provides that class certification is appropriate where “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). By its terms, then, Rule 23(b)(2) imposes two independent but related requirements. In the first place, the defendants’ actions or inactions must be based on grounds generally applicable to all class members. The second requirement is more restrictive, and it is on this aspect of the Rule that we affirm the district court’s ruling. The latter half of Rule 23(b)(2) requires that final injunctive relief be appropriate for the class as a whole. The rule therefore authorizes an inquiry into the relationship between the class, its injuries, and the relief sought, and we have interpreted the rule to require that a class m ust be
3 Because we hold the district court’s denial of certification under Rule 23(b)(2) did not amount to an abuse of discretion, we need not address its alternative holding under Rule 23(a).
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“amenable to uniform group remedies.” Shook I, 386 F.3d at 973. Put differently, Rule 23(b)(2) demands a certain cohesiveness among class members with respect to their injuries, the absence of which can preclude certification. Maldonado v. Ochsner Clinic Found., 493 F.3d 521, 524 (5th Cir. 2007); In re St. Jude Med., Inc., 425 F.3d 1116, 1121 (8th Cir. 2005); Barnes v. Am. Tobacco Co., 161 F.3d 127, 143 (3d Cir. 1998); see also Newberg § 4.11.
This cohesiveness has at least two aspects. First, the class must be sufficiently cohesive that any classwide injunctive relief can satisfy the limitations of Federal Rule Civil Procedure 65(d) – namely, the requirement that it “state its terms specifically; and describe in reasonable detail . . . the act or acts restrained or required.” Fed. R. Civ. P. 65(d)(1);Monreal v. Potter, 367 F.3d 1224, 1236 (10th Cir. 2004). Second, “[a] class action may not be certified under Rule 23(b)(2) if relief specifically tailored to each class member would be necessary to correct the allegedly wrongful conduct of the defendant.” 5Moore’s Fed. Prac. § 23.43(2)(b) at 23-195 (3d. 2000). So, if redressing the class members’ injuries requires time-consuming inquiry into individual circumstances or characteristics of class members or groups of class members, “the suit could become unmanageable and little value would be gained in proceeding as a class action.” Barnes, 161 F.3d at 143. Indeed, it is precisely these types of manageability issues – relating to the district court’s “ability to provide injunctive relief to the class framed in the complaint,” Shook I, 386 F.3d at 974, a textually
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authorized consideration – that we held permissible in Shook I, id. at 973 (“Elements of manageability and efficiency are not categorically precluded in determining whether to certify a 23(b)(2) class.”). And individual issues cannot be avoided simply by formulating an injunction at a stratospheric level of abstraction; as we have explained before, “injunctions simply requiring the defendant to obey the law are too vague to satisfy Rule 65.” Monreal, 367 F.3d at 1236 (internal alterations omitted) (quoting Keyes v. Sch. Dist. No. 1, Denver, Colo., 895 F.2d 659, 668 & n.5 (10th Cir. 1990)). In short, under Rule 23(b)(2) the class members’ injuries must be sufficiently similar that they can be addressed in an single injunction that need not differentiate between class members.
B In their prayer for relief in this case, plaintiffs seek to have seven acts enjoined, see supra Section I, but a review of these acts illustrates how the district court could (and did) reasonably conclude the putative class fails to satisfy Rule 23(b)(2)’s standards. The chief difficulty the district court identified is that much of the relief plaintiffs seek would require the district court to craft an injunction that distinguishes – based on individual characteristics and circumstances – between how prison officials may treat class members, rather than prescribing a standard of conduct applicable to all class members. For example, plaintiffs ask for an injunction compelling defendants to “cease using restraints, pepper spray, and electroshock weapons (‘tasers’) against prisoners
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exhibiting signs of mental illness in circumstances that pose a substantial risk of serious harm to such prisoners.” Aplt. App. at 118. But by its very terms, this prayer for relief asks the district court to craft an injunction that takes into account the specific circumstances of individual inmates’ plights. What specific mental illnesses place a prisoner at an inordinate risk fromthe use of the named implements? And under what circumstances is this risk exacerbated? Presumably the “circumstances that pose a substantial risk of serious harm” depend on the nature and severity of the individual’s illness, but where a practice may only be enjoined by reference to circumstances that vary among class members – such as whether an individual inmate is both showing signs of mental illness and at particular risk from the use of tasers – class-wide relief may be difficult to come by. Instead, different injunctions would be required to establish the appropriate behavior towards different groups of class members.
This same difficulty pervades many of plaintiffs’ claims for relief. For example, plaintiffs seek an order requiring defendants to “provide safe and appropriate housing for prisoners with serious mental health needs.” Id. But, as the district court observed, what is “safe and appropriate” depends on the nature and severity of an individual’s mental illness, not simply on the fact that he is mentally ill. What is safe for Ms. Mosby, who is suicidal, may not be the same as for Mr. Shook, who merely requires delivery of his medication. Similarly, “adequate screening and precautions to prevent self-harm and suicide,” id., does
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not address a cohesive injury suffered by the class. Not all mentally ill people are suicidal, and so this form of relief is overly broad relative to the class as defined, and what constitutes “adequate” precautions against self-harm will necessarily turn on how and in what ways individual inmates are predisposed to harm themselves.
To be sure, plaintiffs also seek relief that in its implementation would not necessarily depend on individual circumstances. They seek an injunction aimed at requiring increased staffing levels, for example, as well as screening procedures to identify at-risk inmates. Id. at 117-18. They also seek an “adequate” system to provide “appropriate” medication to inmates and to monitor the effects of that medication. Id. at 118. But it is here that plaintiffs run into the horn of Rule 65(d)’s specificity requirement. At the class certification stage, the injunctive relief sought must be described in reasonably particular detail such that the court can at least “conceive of an injunction that would satisfy [Rule 65(d)’s] requirements,” as well as the requirements of Rule 23(b)(2). Monreal, 367 F.3d at 1236.4 The problem in our case is that plaintiffs have eschewed any effort to
4 Of course, this is not to say that plaintiffs are required to com e forward with an injunction that satisfies Rule 65(d) with exacting precision at the class certification stage. Monreal, 367 F.3d at 1236 n.11. If anything, the degree of specificity with which plaintiffs must describe the injunctive relief requested becomes more exacting as the litigation progresses: the complaint need only be specific enough to satisfy our notice pleading standards; the class certification motion must be more specific, sufficient to allow the district court to see how it might satisfy Rule 65(d)’s constraints and thus conform with Rule 23(b)(2)’s
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give content to what it would mean to provide adequate mental health staff, adequate screening, or an adequate system for delivering medication. In order to satisfy Rule 65(d), the levels of services must ultimately be capable of description in a sufficiently objective way that both the defendant and the court can determine if the former is complying, see Keyes, 895 F.2d at 668, and a class certification motion requesting injunctive relief that simply prescribes “adequate” or “appropriate” levels of services fails to indicate how final injunctive relief may be crafted to “describe[] in reasonable detail . . . the acts . . . required.” Fed. R. Civ. P. 65(d).
Plaintiffs’ effort is further complicated by the fluid nature of the class. The proposed class includes not only current inmates but future ones as well. In order to craft an enforceable injunction aimed at ensuring “adequate” staffing levels or medication delivery procedures, the district court would have to be able to ascertain the aggregate characteristics of the class as whole, and enforcing the injunction would require monitoring changes to those characteristics over time. Determining what constitutes adequate staffing and training at any given time, however, requires a wealth of information about the class not necessary in many other Rule 23(b)(2) class actions. How many inmates suffer from serious mental illness at any particular time? What specific illnesses are represented in the class,
4(...continued) requirement; and the motion for relief or proposed injunction must of course itself be specific enough to comport with Rule 65(d).
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and in what numbers? What type of staffing and training is necessary to provide “adequate” care for the range of illnesses existing (or likely to exist) in the Jail population at any given time?
Of course, the sorts of problems highlighted by the district court may have been mitigated, or perhaps avoided, by the use of subclasses. Fed. R. Civ. P. 23(c)(5) provides that “[w]hen appropriate, a class may be divided into subclasses that are each treated as a class under this rule.” Plaintiffs could have sought to define subclasses that were “amenable to uniform group remedies,” and in so doing, might have been able to create the cohesion among subclass members required by Rule 23(b)(2). For example, a subclass consisting of all inmates with a known history of suicidal tendencies that sought an injunction requiring visual or video monitoring might possibly solve some of the problems present in this case. Instead, by choosing to seek certification of a single broad class (all Jail inmates with mental health needs) and supplementing that proposed class definition with only one, even broader alternative (all Jail inmates) – without explaining how injunctive relief could deal with many variations within the class – plaintiffs effectively invited the district court’s concerns about the appropriateness of class-wide relief.5 See Robert G. Bone, Who Decides? A
5 In broadening the scope of the class, plaintiffs’ alternative proposed class moves in the wrong direction. A class consisting of all present and future inm ates introduces considerably more variation into the class with respect to the relief sought, raising further questions about whether injunctive relief is justified for the
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Critical Look at Procedural Discretion, 28 Cardozo L. Rev. 1961, 2020 (2007) (“Significant heterogeneity is generally thought to undermine class treatment and trigger stronger individual participation demands because it makes the class less cohesive. And one way to reduce heterogeneity is to create subclasses.”). While the district court could have sua sponte suggested subclassing as a possible solution to Rule 23(b)(2) problems, the Supreme Court has indicated that courts do not bear any obligation to do so: the district court does not “bear the burden of constructing subclasses. That burden is upon the [party seeking certification] and it is he who is required to submit proposals to the court.” United States Parole Comm’n v. Geraghty, 445 U.S. 388, 408 (1980).
C That the district court did not exceed the scope of its discretion in this case is borne out by the fact that we and other circuits have upheld highly similar decisions in the past. In Monreal, the plaintiffs, management-level Hispanic employees of the U.S. Postal Service, brought suit in their individual capacities alleging discrimination on the basis of race and national origin. 367 F.3d at 1226.
5(...continued) class as a whole. For example, injunctive relief aimed at more closely monitoring prisoners for risks of self-imposed harm seems overbroad when the class includes a majority of people who are not at risk fromself-imposed harm. The broader class also raises concerns about whether defendants acted on “grounds that apply generally to the class,” since many inmates presumably do not suffer from mental illness and thus are not subject to defendants’ policies governing treatment of the mentally ill in any meaningful way.
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They also claimed that the Postal Service engaged in a pattern or practice of discrimination against management-level Hispanic employees and that the application of Postal Service policies had a disparate impact on those employees. Id. In pursuit of the latter set of claims, plaintiffs sought to certify a class consisting of “all Hispanic persons who, at the time the discrimination occurred, were employees of the U.S. Postal Service . . . , who have suffered fromrace discrimination with respect to the terms and conditions of their employment.” Id. at 1234. In their class action complaint, plaintiffs sought, among other things, “appropriate declaratory and/or injunctive relief, including final injunctive relief” for a host of alleged discriminatory practices, including, to name a few, unjust promotion practices, inequity in compensation, unjust evaluations, and inequity in training. Id. at 1234-36 (emphasis added).
On appeal, we held that the district court did not abuse its discretion in refusing to certify a class pursuant to Rule 23(b)(2) because, due to “the breadth of the discriminatory actions alleged by Plaintiffs, we [could not] conceive of an injunction” that would be sufficiently specific to be enforceable. Id. at 1236. And while we went on to note that a plaintiff need not plead the relief he or she seeks with sufficient specificity to satisfy Rule 65(d), we held that the district court did not abuse its discretion because the “breadth and discontinuity of the acts” at issue made the case “ill-suited” for class-wide relief, particularly where the injunctive relief sought was only described as “appropriate.” Id. at 1236 &
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n.11. The same critiques apply in this case. Plaintiffs seek to enjoin a wide range of behavior without having carried their burden of demonstrating that the acts to be enjoined do indeed have application to the very broad class framed in the complaint. And plaintiffs further phrase much of the injunctive relief sought in terms of “appropriateness,” a term that gives neither a district court nor a reviewing court any indication as to how injunctive relief can be crafted to satisfy the specificity requirements of Rule 65(d).
Similarly, in Maldonado, our sister circuit affirmed a district court’s decision not to certify under Rule 23(b)(2) a class consisting of uninsured patients challenging the billing and collection practices of a non-profit health care provider. 493 F.3d at 523. The gravamen of the plaintiffs’ claim was that it was “unreasonable” for the health care provider to charge uninsured patients like the plaintiffs standard rates while offering discounts to patients with private insurance plans, Medicare, or Medicaid. Id. Noting that class-wide injunctive relief requires both that “class members must have been harmed in essentially the same way” and that “the injunctive relief sought must be specific,” id. at 524, the court went on to hold that individualized issues relating to class members’ injuries “overwhelm[ed] class cohesiveness,” id. The difficulty the court identified related to the injunction the plaintiffs sought, which would have required the defendant to provide “mutually affordable health care” to class members and to refrain from charging uninsured patients a higher amount than
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that charged insured patients. Id. But, the court held, plaintiffs failed to carry their burden of identifying a method of determining, at a class level, what constituted a reasonable charge for a given service, let alone for the wide range of services encompassed by the plaintiffs’ suit. Id. Whether a charge was reasonable would impermissibly depend on “the specific circumstances of each class member,” and plaintiffs were “unable to explain how a court could define or enforce meaningful injunctive relief,” without getting into the weeds of individual circumstance. Id. at 524-25.
Our case presents exactly these same problems. Like the plaintiffs in Maldonado, plaintiffs here seek an injunction ordering a wide range of behavior conformed to an essentially contentless standard, bounded only by reference to ambiguous terms like “reasonable” behavior or “adequate” treatment. While we do not propose that plaintiffs must come forward with a finished injunction at the class certification stage, they must be able to demonstrate that such injunctive relief – relative to the class – is conceivable and manageable without embroiling the court in disputes over individualized situations and constantly shifting class contours. See also Angela C. Zambrano & Kent Barnett, Putting the Cart Before the Horse: Should a Court Certify a Class of Residential Consumers Seeking a Declaration that the Consumers – If They Later Choose – Are Entitled to Rescind for a TILA Violation?, 125 Banking L. J. 160 (2008) (arguing that individual issues destroy the necessary class cohesiveness in a (b)(2) action when class
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members’ entitlement to the relief sought depends on individual circumstance);
Thomas M. Byrne, Class Actions, 58 Mercer L. Rev. 1171, 1173 (2007) (noting
that where “differences in proof or individualized issues exist pertaining to each
class member, court have rejected certification . . . [for]failure to meet Rule
23(b)(2)’s requirement that relief apply to the class as a whole.”).6
It is precisely these features that distinguish our case from the many and
diverse civil rights cases whose certifications we have upheld and will continue to
uphold. For example, in Milonas v. Williams, we affirmed the district court’s
certification of a class consisting of all current and future students at the Provo
Canyon School. 691 F.2d 931, 936 (10th Cir. 1982). The plaintiffs in Milonas
6 Similarly, in In re Methyl Tertiary Butyl Ether (“MTBE”) Prods. Liab. Litig., 209 F.R.D. 323 (S.D.N.Y. 2002), the district court denied class certification of a Rule 23(b)(2) class consisting of private residential well owners scattered across four states claiming that the defendant oil companies had contaminated their well water. Id. at 328. The plaintiffs’ requested injunctive relief included requiring the defendants to provide “clean water” to class members and “provide remediation of contaminated wells.” Id at 344. Reasoning that if individual issues pervade the entire action “the suit could become unmanageable,” id. at 343, the court proceeded to identify multiple individual issues that would have to be addressed by any injunction. For example, what constituted “clean” water would necessarily depend on the individual plaintiffs’ intended use for the water as well as “how the contamination affects each plaintiff.” Id. at 344. Similarly, successful remediation pursuant to an injunction would necessarily depend on the individual circumstances resulting in contamination. Id. The plaintiffs attempted to get around this problem by arguing that the court could “fashion an order setting forth broad guidelines” for the defendants to follow. Id. at 345. But, just as here, such “broad guidelines” failed to satisfy the lim its on injunctive relief contained in Rule 65(d). Id. See also Heffner v. Blue Cross and Blue Shield of Ala., Inc., 443 F.3d 1330 (11th Cir. 2006) (vacated a class certification order because the proposed class failed to satisfy the second half of Rule 23(b)(2)).
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sought to enjoin a number of practices used at the school, including excessive force and the use of isolation cells, and the district court granted the injunction. Id. at 935. Similarly, in Penn v. San Juan Hosp., Inc., 528 F.2d 1181 (10th Cir. 1975), we reversed a district court’s denial of class certification in a case alleging that a hospital denied Native Americans medical care on account of their race. Id. at 1183. In both cases, the relief the plaintiffs sought did not require the district court to ascertain detailed information about class members. For purposes of designing and enforcing an injunction, whether someone was a member of the class and had been subject to, for example, confinement in an isolation room, was easily determinable. Neither did the injunctions fail for lack of specificity; the plaintiffs did not describe the acts to be enjoined in terms of “adequacy” or “reasonableness,” but concretely asked that the defendants be ordered to cease certain behaviors, such as confining students in isolation cells or considering race in deciding whether to treat a patient. It is precisely the lack of such concrete characteristics that distinguishes our case from the mine run of civil rights class actions we have upheld under Rule 23.
Plaintiffs point out that in cases brought by the U.S. Department of Justice contesting mental health treatment in certain jails, other district courts have granted injunctive relief similar to the relief they seek. See, e.g., United States v. Terrell County, No. 04-cv-00076-WLS (M.D. Ga. Dec. 21, 2007); United States v. Dallas County, No. 307-cv-1559-N (N.D. Tex. Nov. 6, 2007). But these cases, in
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which the United States is the plaintiff, do not as a threshold matter have to satisfy Rule 23(b)(2)’s requirements. Such suits are instead brought pursuant to the Attorney General’s statutory authority to pursue cases involving “egregious or flagrant conditions which deprive [institutionalized] persons of any rights privileges, or immunities secured or protected by the Constitution or laws of the United States” and which result from a “pattern or practice of resistance to the full enjoyment of such rights.” 42 U.S.C. § 1997a. While the statute places some preconditions on the Attorney General’s ability to bring suit, such as,inter alia, a requirement that the Attorney General first notify state officials of the allegedly illegal conditions, 42 U.S.C. § 1997b, the statute places no conditions similar to those placed on private class actions by Rule 23. Moreover, the statute in question explicitly disclaims any effort to “expand or restrict the authority of parties other than the United States to enforce the legal rights which they may have,” 42 U.S.C. § 1997j, highlighting the fact that the United States’ ability to bring such suits cannot lift the restrictions imposed by Rule 23 on private plaintiffs’ ability to bring suit. Simply put, the salutary fact that other avenues may be available to address inappropriate mental health conditions does not mean that Rule 23 class actions must also always be available.
In a similar vein, plaintiffs point out that another district court judge in the same district in which plaintiffs filed their suit has recently certified a class similar to the one plaintiffs seek to have certified in a suit challenging similar
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practices at a different institution. See Vandehey v. Vallario, 2008 WL 697428 (D. Colo. March 13, 2008), appeal docketed, No. 08-502 (10th Cir. March 28, 2008). Without in any way commenting on the merits of the appeal in that matter, the fact that other courts might reach conclusions different from that reached by the district court in this case is not dispositive in our case. Our inquiry is limited to asking whether the district court’s decision “exceeded the bounds of permissible choice,” a standard that, as we have already emphasized, acknowledges the possibility that polar opposite decisions may both fall within the “range of possible outcomes the facts and law at issue can fairly support.” McComb, 519 F.3d at 1053. And, as we have indicated, there is sufficient support in the Rule and applicable case law to indicate that the district court’s decision in this case, while perhaps not the only tenable one, or one even we would ourselves have made, was permissible.
Plaintiffs also place significant reliance on the argument that Rule 23(b)(2) classes are generally “well suited” to civil rights cases. We agree entirely. Rule 23(b)(2) was drafted in significant measure to enable civil rights class actions. See Rules Advisory Committee Notes to 1966 Amendments to Rule 23, 39 F.R.D. 69, 102. And we have upheld and will frequently uphold such lawsuits. But the Supreme Court has also instructed us that, while “[w]e are not unaware that suits [alleging violations of civil rights] are often by their very nature class suits, involving classwide wrongs. . . .[,] careful attention to the requirements of Fed.
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Rule Civ. Proc. 23 remains nonetheless indispensable. The mere fact that a complaint alleges [violation of a civil right] does not in itself ensure” that Rule 23's requirements are satisfied. East Texas Motor Freight Sys. Inc. v. Rodriguez, 431 U.S. 395, 405 (1977). In other words, that many civil rights actions may properly proceed under Rule 23(b)(2) does not mean that we may assume that all such actions should so proceed; putative class actions still must satisfy the express requirements of Rule 23, and the district court reasonably held that this class action was more like our decision in Monreal than those in Milonas or Penn.
Neither does the inability of plaintiffs to have this particular class certified defeat their ability to have these issues reviewed either individually or even through the class action mechanism. Individually or in joined actions, see Fed. R. Civ. P. 19-20, prisoners remain free to bring damages claims against defendants for unconstitutional harm they suffer while in custody of the Jail. Such actions would allow a court to pass judgment on whether defendants’ conduct amounted to deliberate indifference with respect to individual inmates. And, to be sure, damages actions, by sanctioning past conduct, can incentivize a defendant to modify its future conduct. Different named plaintiffs are of course also free to pursue another class action, defining a class (or subclasses) for whomrelief is deemed more manageable, within the bounds of the district court’s discretion. After all, to the extent that the denial of class certification can have preclusive effect on unnamed class members, see In re Bridgestone/Firestone, Inc., Tires
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Prods. Liab. Litig., 333 F.3d 763 (7th Cir. 2003) (giving preclusive effect to the denial of class certification as against unnamed class members); Bailey v. State Farm Fire and Cas. Co., 414 F.3d 1187, 1190 (10th Cir. 2005) (noting that “[m]any of the principles articulated in Bridgestone/Firestone are sound”), the failure to certify this specific class hardly has preclusive effect on different plaintiffs in a future suit seeking certification of a different class or seeking different relief. The only question we pass on today is the narrow question whether the relationship between the class proposed and the relief sought in this suit satisfies Rule 23(b)(2).
III Despite the district court’s express consideration of Rule 23’s requirements, plaintiffs assert that the district court included extraneous and legally erroneous discussion in its opinion, the inclusion of which amounts to reversible error. Specifically, they charge that the district court disregarded our opinion inShook I by (A) relying on the difficulties in identifying members of the class as a basis for denying certification; (B) prematurely evaluating the merits of plaintiffs’ claims; (C) and continuing to rely on the PLRA’s limitations on relief as an alternative basis for denying certification. Whether the district court applied the correct legal framework in its class certification decision is a legal question, and thus we review plaintiffs’ claims on this score de novo. Shook I, 386 F.3d at 967. And of course, as we have explained many times, even when a decision – such as class
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certification – is committed to the district court’s discretion, the district court necessarily abuses that discretion when its decision depends on a legal error. McComb, 519 F.3d at 1054. We address each of plaintiffs’ claims below and conclude that – while the district court should have excised the PLRA fromits discussion of class certification – it also amply explained how its concerns intersect with the constraints of Rule 23. We therefore find that the district court did not commit the same legal errors for which we reversed its prior order.
A In Shook I, we held that difficulties identifying class members could not defeat certification under Rule 23(b)(2) because, while Rule 23(c)(2) explicitly authorizes courts to consider problems identifying class members in (b)(3) class actions insofar as such difficulties are relevant to providing notice to class members, there is no similar authorization for (b)(2) actions. 386 F.3d at 972. The difference, we observed, is that Rule 23(c)(2) makes notice mandatory for (b)(3) classes but optional for (b)(2) classes, and thus concerns relevant to providing notice – such as identifiability – are not properly part of the (b)(2) calculus. Id. We went on to hold, however, that “the factual and legal concerns leading the court to consider problems of identifying” the class could be relevant to, among other things, whether final injunctive relief was appropriate within the meaning of Rule 23(b)(2). Id. at 973-74.
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Our holding reflected how difficulties in determining the contours of a class can be relevant to both parts of Rule 23(b)(2)’s test. For example, where the outer boundaries of a class are indefinite, a court may not be able to ascertain whether a defendant acted on generally applicable grounds. Similarly, if determining whether the injunctive relief sought is appropriate for the class as a whole requires some knowledge about the characteristics of the class or variation within the class – such as, for example, its approximate size or the distribution of individuals within the class possessing certain traits – difficulties in estimating these characteristics may properly preclude certification. Put differently, difficulties in identifying characteristics of the class can prevent plaintiffs from carrying their burden of showing that “final injunctive relief . . . is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2).
Here, the district court’s order evinces just these sorts of concerns. It expressed concern not with potential problems identifying individual class members for purposes of notification – a consideration relevant only to Rule 23(b)(3) actions – but with problems associated with identifying characteristics of the class essential to determining whether class-wide relief is appropriate. For example, given the “many varieties and degrees of mental disorders,” the district court expressed concern with how the Jail, not the court, would be able to identify members of the class, and the specific treatments their individual maladies required, in a way that would allow the Jail to comply with any relief
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obtained or the court to monitor the Jail’s compliance with such relief. D. Ct. Op. at *7-8. Considerations along these lines are permissible under Rule 23 and consistent with our decision in Shook I.
B Plaintiffs’ argument that the district court prematurely considered the merits of their claims fails for similar reasons. It is of course true that Rule 23 does not give “a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action.” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177 (1974). The Supreme Court has been equally clear, however, that there is not an impermeable wall between the substance of a cause of action and the decision to certify the class. “[T]he class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff’s cause of action.” Gen. Tel. Co. Of Southwest v. Falcon, 457 U.S. 147, 160 (1982). In other words, while a district court may not evaluate the strength of a cause of action at the class certification stage, it must consider, without passing judgment on whether plaintiffs will prevail on the merits, whether remedying the harm alleged can be done on a class-wide basis in conformity with Rule 23(b)(2). See Eisen, 417 U.S. at 178 (“In determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met.”); Gariety v.
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Grant Thornton, LLP, 368 F.3d 356, 366 (4th Cir. 2004) (“[W]hile an evaluation of the merits to determine the strength of plaintiffs’ case is not part of Rule 23 analysis, the factors spelled out in Rule 23 must be addressed through findings, even if they overlap with issues on the merits.”). But see Robert G. Bone & David S. Evans, Class Certification and the Substantive Merits, 51 Duke L. J. 1251 (2002) (arguing that because the decision to certify a class is often effectively dispositive by forcing settlement, district courts should be authorized to consider the merits of class claims at the certification stage).
The district court in this case cited precisely these types of concerns, averring to the “highly individualistic and case specific” nature of the inquiry it was being asked to undertake, D. Ct. Op. at *5, as well as its view that “[c]ompliance with class-wide injunctive relief would be impossible to monitor, if it would even be possible to enter an order meeting the requirements of Rule 65(d),” id. at 7. Such concerns, far from impermissibly touching on the merits of plaintiffs’ suit, go directly to the heart of the inquiry under Rule 23(b)(2) into the relationship between the class proposed and the relief sought. Indeed, to the extent that the district court commented on the merits of plaintiffs’ claims at all, it was to express the view that on the facts alleged the individual plaintiffs have a strong case: “The facts alleged in the complaints could support individual claims for relief, but those allegations do not show that final injunctive relief or declaratory relief with respect to the class as a whole is appropriate.” D. Ct. Op.
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at 11. The difficulty, then, in the district court’s view was not the likelihood of success on the merits, which the district court seemed to feel was relatively high – it was a deficiency in plaintiffs’ showing under Rule 23(b)(2).
C Finally, we confess that we are as surprised as plaintiffs that on remand the district court continued to rely as an alternative ground for denying class certification on “the inability of the court to fashion the remedy requested, given the . . . the jurisdictional limitations imposed by the [PLRA].” Id. at 4. Our holding in Shook I was plain: “Congress did not intend the PLRA to alter class certification requirements under Rule 23.” Shook I, 386 F.3d at 971. In light of Shook I, any reference at the class certification stage to the PLRA’s limitations on the district court’s ability to grant relief was error. Having said that, however, we are nevertheless obliged by our own case law to consider all of the district court’s alternative holdings. See, e.g., Murrell v. Shalala, 43 F.3d 1388, 1389 (10th Cir. 1994). As we have said before, “[w]hatever the particular result in any given case, the use of alternative dispositions generally benefits everyone; [it]relieves a pressing work load by resolving cases thoroughly once; the courts avoid successive, piecemeal appeals; and litigants are spared the protracted delays that result when a case drags on incrementally.”7 Id. Thus, no matter how erroneous
7 Indeed, we have gone so far as to hold that where a district court’s disposition rests on alternative and adequate grounds, a party who, in challenging
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one alternative disposition, we still must bring our dispassionate analysis to each alternative ruling made by the district court.
And here, the district court’s independent analysis of Rule 23, separate and apart from its continued reliance on the PLRA, stands as a sufficient and appropriate basis for affirmance. In Shook I, we identified the district court’s error as “not specifically addressing the traditional Rule 23 factors in denying class certification,” 386 F.3d at 972, noting that the district court “did not address Rule 23(b)(2)” in its order at all, id. at 968. As we have discussed above, the district court remedied that deficiency in its second order, extensively analyzing the requirements of Rule 23(a) and (b)(2) and finding those requirements not met. Moreover, in its latter opinion the Rule 23 discussion constituted the bulk of the district court’s analysis; its discussion of the PLRA was limited to stray references. Such an effort is starkly different fromthat offered by the district court in support of its first order. It demonstrates an engagement with the analytical framework set up by Rule 23, and as we have said before, “[t]here is no abuse of discretion when the trial court applies the correct criteria [under Rule 23] to the facts of the case.” J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1287 (10th Cir. 1999). We thus are constrained to affirmthe district court based on the
7(...continued) that disposition, only argues that one alternative is erroneous necessarily loses because the second alternative stands as an independent and adequate basis, regardless of the correctness of the first alternative. Murrell, 43 F.3d at 1389-90; Berna v. Chater, 101 F.3d 631, 633 (10th Cir. 1996).
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legal adequacy of its Rule 23 analysis, despite its erroneous alternative PLRA discussion.
* * * Rule 23(b)(2) authorizes an inquiry into the relationship between the class framed in the complaint and injunctive relief requested. A district court does not abuse its discretion in denying class certification where providing the requested relief at the level of specificity required by Rule 65(d) would render a class action unmanageable – either because of difficulties in determining relevant aggregate characteristics of the class or because factual differences between class members require different standards of conduct for undefined groups within the class. The judgment of the district court is therefore
Affirmed.
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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Case No. _________ MARK SHOOK, JAMES ROBILLARD and DENNIS JONES, on behalf of themselves and all others similarly situated,
Plaintiffs, vs. THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF EL PASO and JOHN WESLEY ANDERSON, in his official capacity as Sheriff of El Paso County,
Defendants.
CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF
Plaintiffs, who are prisoners in the El Paso County Jail (“Jail”) with serious mental health needs, and who are subject to the actions and omissions of defendants that are described in this Complaint, allege as follows:
BACKGROUND 1. Pre-trial detainee Michael Lewis died while strapped face-down to a restraint board in the Jail on May 7, 1998, his second time on the board for that day. The restraint was imposed by sheriff deputies, not medical or mental health personnel. For at least five days, he had been hallucinating and psychotic, the probable result of the Jail medical provider’s decision to change his medications, a decision made without consulting with the therapist who had prescribed his former medications. Two days after security staff noted his decompensation, the Jail’s counselor placed him on the waiting list to see the Jail’s psychiatrist, who visited the Jail

only one morning every other week. Mr. Lewis did not live long enough to see the psychiatrist; he died while struggling against his restraints.
2. Since that death in May 1998, eight additional prisoners have died in the Jail, four of them in 2001. In almost every case, the deceased prisoner was suicidal, seriously mentally ill, or displaying symptoms of psychosis from overdose or withdrawal from street drugs or alcohol.
3. Shortly after the latest death, a suicide in November 2001, the American Civil Liberties Union wrote to defendant El Paso County Board of County Commissioners (“Board”) to ask it to investigate the alarming pattern of prisoner deaths and consider whether the Jail was staffed with a sufficient number of competent medical, mental health, and security personnel who were adequately trained to recognize and respond appropriately to the needs of the Jail’s population.
4. The Board declined to investigate. INTRODUCTION
5. This class action for injunctive and declaratory relief is brought pursuant to 42 U.S.C. § 1983 to preserve the rights of the plaintiffs and the plaintiff class under the Eighth and Fourteenth Amendments to the United States Constitution.
6. The named plaintiffs and the plaintiff class are all subject to the actions, omissions and deliberate indifference of the defendants described herein. The named plaintiffs and the plaintiff class suffer from serious mental health problems, and the deliberate indifference of the defendants to these problems exposes each of them to conditions that constitute cruel and unusual punishment in violation of the Eighth Amendment and deprivation of liberty in violation of the Fourteenth Amendment. As a result of the defendants’ actions and omissions, the named
2

plaintiffs and the plaintiff class face continued and further degradation of their mental health and daily exposure to a serious risk of injury or death.
7. This case is about the long-lasting and continuing failure and refusal of the Board and defendant Anderson to acknowledge or provide sufficient resources for the serious mental health needs of their prisoners during the time they are imprisoned in the Jail, and their failure to enter a contract with a medical services provider which (a) adequately provides for the prisoners’ serious mental health needs, and (b) is rigorously enforced by defendants. The needs of mentally ill prisoners include diagnosis of their condition, timely provision of proper treatment and medication by competent staff, safe and appropriate housing, and protection from inhumane and punitive actions taken out of ignorance of or indifference to their mental state.
JURISDICTION AND VENUE 8. This Court has subject matter jurisdiction of this action pursuant to 28 U.S.C. § 1331 because this action arises under the Constitution and laws of the United States, and pursuant to 28 U.S.C. § 1343(a)(3) because this action seeks to redress the deprivation, under color of state law, of plaintiffs’ constitutional rights. Venue is proper under 28 U.S.C. § 1391(b) because all defendants reside in this district, and because the events and omissions giving rise to plaintiffs’ claims occurred in this district.
THE PARTIES 9. Plaintiff Mark Shook has been continuously confined in the Jail since the fall of 2001 and is mentally ill. See also paragraph 58. 10. Plaintiff James Robillard has been continuously confined in the Jail since the summer of 2000 and is mentally ill. See also paragraphs 59-62.
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11. Plaintiff Dennis Jones has been continuously confined in the Jail since September, 2001 and is mentally ill. See also paragraph 63.
12. Defendant Board is a statutory governmental entity within the state of Colorado. It is a “person” within the meaning of 42 U.S.C. § 1983. The Board is responsible for the operation of the Jail and the El Paso County Sheriff’s Department, and determines, through the annual award of contracts, the amount and nature of the mental health services provided to the prisoners in the Jail.
13. Defendant John Wesley Anderson (“Anderson”) is the Sheriff of El Paso County, and pursuant to C.R.S. 30-10-511 has charge and custody of the Jail. He has final policy making authority for all matters relating to management of the Jail, including the provision for the mental health needs of the prisoners. He is sued in his official capacity.
14. With regard to all actions and omissions alleged herein, the defendants have acted and continue to act under color of state law.
FACTS RELATING TO THE CLASS AND THE CLASS ACTION 15. Plaintiffs bring this action pursuant to Fed. R. Civ. P. 23(a) and 23(b)(2) on behalf of themselves and all individuals who are members of a class defined as “all persons with serious mental health needs who are now, or in the future will be, confined in the El Paso County Jail.” 16. The members of the class are so numerous, and the class so fluid, that joinder of all members is impracticable. The total population of the Jail exceeds 1,000, with approximately 20% having serious mental health needs. New prisoners and class members enter the Jail, and others are transferred or released, every day.
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17. There are numerous questions of law and fact common to the class, including the scope and interpretation of the Eighth and Fourteenth Amendments in the Jail setting; the lawfulness of the policies, practices and omissions of the defendants in the provision of mental health services; and the effect of the defendants’ deliberate indifference. All class members are equally subject to the conditions of confinement and the systemic deficiencies described in this Complaint, including the lack of sufficient staff with adequate training; lack of inpatient care; lack of adequate housing; lack of adequate protection from self-harm and suicide; lack of an adequate system for medication; and the use of restraints and excessive force. The named plaintiffs have each been affected by these constitutionally deficient conditions of confinement and face a substantial risk of being adversely affected by them in the future. The claims of the class representatives are typical of those of the class and the class representatives will fairly and adequately protect the interests of the class. The attorneys representing plaintiffs are experienced in handling class action cases involving claims that jail and prison conditions violate prisoners’ constitutional rights.
18. The defendants have, individually and collectively, acted and refused to act on grounds generally applicable to the class, and final injunctive and declaratory relief with respect to the class as a whole is appropriate.
STATEMENT OF FACTS COMMON TO ALL PLAINTIFFS AND THE PLAINTIFF CLASS
The El Paso County Jail Facilities 19. The Jail houses recent arrestees, persons awaiting trial, and persons convicted and
sentenced to terms of two years or less. The Jail houses both male and female prisoners and houses both adults and juveniles who have been charged as adults. The Jail comprises two
5

buildings, both located in Colorado Springs: the Criminal Justice Center (“CJC”), and the Metro Detention Center (“Metro”).
20. The Jail’s prisoner population regularly exceeds 1,000, and has been as high as 1,139. Both CJC and Metro are badly overcrowded; CJC was designed to house 588 prisoners and Metro was designed for 260 prisoners. A 1998 report by the American Correctional Association (“ACA”) described CJC as “extremely overcrowded.” On July 30, 2001, the ACA again notified defendant Anderson that the Jail is in violation of ACA capacity standards. Although CJC was originally designed to house prisoners in cells arranged around a dayroom area, as a result of overcrowding, many prisoners are forced to sleep in bunk beds set up in the dayroom area. Other prisoners are forced to sleep in “sled beds,” which are coffin-like plastic forms placed directly on the floor.
21. Facilities for the mentally ill are virtually nonexistent. The “mental health unit” in CJC is merely a cellblock, identical to others, that has been given this designation. Like the other cellblocks in CJC, the mental health cellblock is seriously overcrowded, with mentally ill prisoners sleeping on sled beds on the floor. The dangerous physical structure and poor management of the mental health cellblock pose serious risks to the prisoners of self-harm and suicide. At Metro, there are no separate facilities whatever for the mentally ill.
22. There are no separate facilities anywhere in the Jail for mentally ill women. All female prisoners are confined together regardless of their mental health needs. This practice heightens the risk of victimization and aggravates the suffering of mentally ill women.
23. In connection with litigation over the death of Michael Lewis, the medical director of the Jail stated under oath that between ten and twenty percent of the Jail’s prisoners
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are prescribed psychotropic medications. While she was employed as the Jail’s “mental health professional,” Ruby Fink stated under oath that she sees 200 to 300 prisoners per month, and that she believes 25% of these prisoners are “acutely psychotic.” At any given time, approximately 20% of the prisoners in the Jail have serious mental health needs.
24. Prisoners exhibiting signs of mental illness are frequently placed in “special detention calls.” These tiny cells have no windows, no bed, no toilet, and no sink. Although Jail policies and corrections standards require deputies to check on the prisoner’s welfare every 15 minutes, mentally ill prisoners are sometimes left in these cells unobserved by staff. In 1998, an ACA report “highly recommended that these rooms not be used as they do not meet accreditation standards.” Nevertheless, defendants continue to use these cells to confine mentally ill prisoners. There is no therapeutic value in such confinement. Indeed, confinement of mentally disturbed prisoners in such conditions can exacerbate the seriousness of their illness.
25. The oppressive conditions in the special detention cells, including the lack of toilet facilities, can and do cause prisoners to pound on the cell door in an effort to get deputies to let them use a restroom or attend to other needs. Deputies often respond aggressively as though the prisoner is causing a disturbance, prompting the prisoner to respond with anger and frustration in turn. The resulting cycle of agitation and anger often escalates into a confrontation that can result in prisoners being forcibly restrained with shackles in the “fetal position,” or strapped into the restraint chair, and/or medicated with drugs to “calm” the prisoner. The Provision of Health Services
26. Health care services at the Jail, including mental health services, were, until recently, provided by Correctional Medical Services, Inc. (“CMS”) pursuant to a contract with
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the Board. Such services are now provided pursuant to a contract with Correctional Healthcare Management (“CHM”).
27. The defendants have failed in the past to ensure that the medical contractor provides fully the services promised in the contract. The former medical services provider, CMS, failed in numerous material respects to provide the mental health services called for in its contract. For example, it (1) failed to conduct full mental health evaluations within the 14 days specified in the contract; (2) failed to provide a staff of licensed or certified mental health professionals; (3) failed to furnish the contractually-required clinical supervision; (4) failed to fulfill the medication monitoring standards set forth in the contract; (5) failed to have mental health staff on call and available 24 hours a day; and (6) failed to provide the necessary care and treatment for prisoners who need in-patient psychiatric care.
28. Defendants have failed to establish procedures to ensure that the new medical services provider, now CHM, complies fully with its contract, and provides all the services set forth therein.
29. The annual amount spent by the defendant Board for all health care at the Jail is approximately $2.3 million. Of this, only a small fraction is for the provision of mental health services.
30. Mental health staffing, which has not kept pace with the explosive growth in the Jail’s population and the increasing percentage of that population with serious mental health needs, is inadequate to meet the serious mental health needs of the Jail’s prisoners. The Jail’s mental health staff are concentrated at CJC. Long delays frequently occur in the provision of essential care to mentally ill prisoners. The current contract for health services with CHM
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provides for psychiatric services of only 2 hours per week, or approximately 36 seconds per mentally ill prisoner per week. It provides for a psychologist for only 16 hours a week, and much of this time is spent on administrative matters. There are no psychiatric nurses. The two additional mental health employees the defendants provide are inadequate in number, are unlicensed and lack sufficient background and training to provide for the serious mental health needs of the Jail’s prisoners.
31. Some prisoners suffer from such acute mental health needs that transfer to an inpatient psychiatric facility is required for their safety and well being. Staff at the Jail fails to timely transfer these prisoners to an inpatient psychiatric setting where they could receive the treatment their condition requires. In the course of litigation over the death of Michael Lewis, the administrator of Correctional Medical Services stated under oath that the El Paso County Jail is “full of individuals that belong in the state hospital.” According to this testimony, the state hospital does not accept all patients who need inpatient psychiatric care; it accepts only those who fit the more restrictive criterion of posing a danger to themselves or others. Even when prisoners in the Jail meet this more restrictive standard, at least half the time there is no bed available in the state hospital. When inpatient psychiatric care is needed but is not available at the state hospital, it is essential that the defendants provide it at some other location, but they do not do so. Defendants do not even take the minimal step of requiring that a prisoner who needs hospitalization be placed in the Jail’s infirmary.
32. Security staff play a crucial role in mental health care in a jail setting. Because of their close and frequent contact with prisoners, they must be trained to recognize and understand the difference between willfully defiant behavior that violates jail rules, and behavior that is the
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product of psychosis or mental illness. In the latter case, they must promptly call upon mental health staff for assistance and evaluation, but often they do not do so. They must also regularly monitor mentally ill prisoners and intervene to protect them from attempts at self-harm or suicide. In part because the Jail is chronically understaffed as well as overcrowded, the security staff at the Jail are not able to maintain adequate surveillance of mentally ill prisoners. Moreover, they are not sufficiently trained to perform their mental health-related duties in a competent manner.
33. On numerous occasions, security staff rather than mental health staff make decisions that only trained mental health professionals are qualified to make. For example, security staff often decide that a prisoner is suicidal and act on that decision by confining the prisoner in a special detention cell, sometimes with restraints. Without consulting with the Jail’s mental health personnel, security staff often decide that the prisoner is no longer suicidal and can be released from the special detention cell. Security staff, rather than medical staff or the Jail’s mental health personnel, often make the decision to place suicidal or mentally ill prisoners in restraints, including full body restraints such as the restraint chair. Security staff often respond to symptoms of mental illness with inappropriate use of force, rather than by summoning mental health staff to make appropriate mental health interventions. Restraints and Use of Force Against Prisoners With Mental Illness
34. The Jail’s use-of-force policy permits officers to use pepper spray against prisoners “in the maintenance of order and discipline.” Pepper spray is sprayed in the face, and causes excruciating pain, gagging, and temporary paralysis of the larynx. Its use in custodial settings has been associated with side effects including high blood pressure, nerve damage,
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chemical burns, and death. The Jail’s policy and training materials do not caution officers that pepper spray often fails to achieve the desired effect when the prisoner’s unruly behavior is the result of mental illness or overdose or withdrawal from drugs or alcohol. Nor do the Jail’s policy or training materials provide that officers should limit use of pepper spray to a single one-second burst. As a result, mentally ill prisoners are likely to be subjected to repeated doses of pepper spray, with the accompanying increased risk of serious health consequences and even death. The El Paso County Coroner identified pepper spray as a contributing cause of the death of Andrew Spillane, a pre-trial detainee who died in the Jail in May, 2000. See paragraph 46.
35. Mental health patients, particularly those taking psychotropic medications, and those who are psychotic and highly agitated, are at particular risk of death while in restraints. At the Jail, restraints, including so-called “fetal position” restraints and the fully-immobilizing restraint chair, are used inappropriately on prisoners exhibiting signs of mental illness. In 1998, the ACA recommended that the Jail consider all restraints to be medical restraints, which would require that health care staff, rather than security staff, determine that restraint is appropriate. The defendants rejected this suggestion, and security staff continue to make the decision to place mentally ill prisoners in restraints, often without any subsequent evaluation by medical or mental health personnel to determine whether the situation warrants psychiatric intervention or other medical management. Improper Delivery of Medications
36. Many class members depend on medications to help them maintain mental stability and the minimum level of social functioning that is required for them to follow the rules and instructions of Jail staff. When they are deprived of their necessary medications, and faced
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with the added stresses of incarceration, class members are at high risk of mental destabilization.
37. Monitoring of persons taking medications for their mental illness is critically important, both to ensure that the medication is having the desired therapeutic effect and to detect potentially serious side effects and toxicity. The Jail has insufficient staff and an inadequate system for effective monitoring of those who are taking medications, and class members have been and will in the future be harmed as a result.
38. Sudden or prolonged discontinuation of prescribed medications can have disastrous results. Before their arrest, many class members had medications prescribed by outside therapists to treat their mental illness, and these medications are taken away at arrest or booking into the Jail. However, the medication orders are not reinstated by the Jail’s medical staff for long periods of time, sometimes for up to two weeks, putting class members who depend on their medications at high risk of mental destabilization.
39. Abrupt changes in medications can have seriously negative effects. The Jail’s health care services provider maintains a formulary, a restrictive list of medications that are available for the Jail’s physicians to prescribe. Many times, a specific medication that a class member was being treated with successfully outside the Jail is not available on the Jail’s formulary. In that event, defendants force class members to accept an alternative medication that may not work as well for them. Frequently, the decision to switch prisoners to a new medication is made for monetary rather than medical reasons. When any change in medication is made, the Jail has an inadequate system for monitoring the therapeutic or toxic effects of the change.
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40. Forced changes in medications are a particular problem for class members who have received psychiatric treatment at a state or local inpatient facility, and are then brought to the Jail. These class members are often stabilized on specific medications at the hospital, and then forced to switch to new medications at the Jail because the medications that hospital doctors used to stabilize them are not available on the Jail’s formulary. The abrupt change in medication can lead to destabilization and injury.
41. The Jail’s medication delivery system is inadequate, thus putting class members at risk that their prescribed medication will not be effective or will have increased toxicity. Medications that are supposed to be taken at 12-hour intervals are delivered to the cellblocks as early as 4:30 a.m. and as late as 9:00 p.m. Some medications should be taken three or four times a day, but are given twice daily for the convenience of staff. Some medications should be taken with food, and some should be taken on a empty stomach, but the schedule of the medication carts is independent of the food delivery schedule. Some medications that are designed with special pharmaceutical coatings, and must be swallowed whole in order to have the intended effect, are crushed before dispensing to prisoners. Tragic Consequences of Inadequate Mental Health Care
42. Prisoners in general have greater mental health needs than the free-world population, and the needs of jail prisoners are especially great. Having recently been arrested, many jail prisoners are experiencing withdrawal from alcohol and other substances. Facing the trauma of sudden arrest and incarceration, and the stress and uncertainty of a trial and a potentially lengthy prison sentence, many jail prisoners experience serious mental health crises that can explode into self-harm, suicide attempts, or suicide. Combined with inadequate staffing
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of deputies to provide protection to inmates at risk of self-harm, the many inadequacies in mental health services at the Jail have resulted in an epidemic of suicide attempts. Since 1995, when defendant Anderson took office as El Paso County Sheriff, there have been at least 142 suicide attempts in the Jail. There have been at least four successful suicides in that period, including two in 2001.
43. The following paragraphs set forth specific examples of how the acts and omissions of the defendants have led to, and pose a continuing risk of leading to tragic consequences for mentally ill prisoners in the Jail.
Michael Lewis, May, 1998 44. On May 7, 1998, five days after he first began hallucinating and displaying other signs of psychosis, pre-trial detainee Michael Lewis died while struggling against the restraints on the Jail’s restraint board. (See paragraph 1.) Prisoner No. 1, April, 1999 45. Prisoner No. 1 was already visibly disturbed when she arrived at the Jail for an alcohol violation in 1999. She told deputies that she had recently been raped twice. She made suicidal statements, and deputies put her in an isolation cell. After she attempted to hurt herself, deputies stripped her naked, laid her face-down on the bare concrete floor, handcuffed her behind her back, and shackled her legs at the ankles. They returned to her cell 15 minutes later and strapped her into a restraint chair, still naked. A male deputy took a photograph, staring at her through the camera’s viewfinder far longer than necessary for a simple Polaroid shot. For the next five hours she remained strapped in the chair, naked, in full view of the male deputies, and screaming in terror as she re-experienced the traumatic fear and helplessness she endured
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when she was held immobile and raped. Deputies paged the on-call mental health worker four separate times, but she did not arrive until more than 3 hours after the prisoner was strapped into the restraint chair.
Andrew Spillane, May, 2000 46. On May 10, 2000, pre-trial detainee Andrew Spillane died in the Jail as a result of seizures caused by delirium tremens and pepper spray. Mr. Spillane had arrived at the Jail at 7 am that morning, already displaying symptoms of psychosis as a result of alcohol withdrawal. Instead of being sent to the hospital or even the Jail’s infirmary to receive immediate medical attention, he was housed in a regular cellblock of the Jail. The Coroner’s report states that by mid-afternoon, he still had not received medical attention, and guards put him in a special detention cell “for his unruly behavior,” which the Coroner said was caused by early stages of delirium tremens. By 5:20 pm, Mr. Spillane finally received some medication and was transferred to the Jail’s infirmary. But his delirium and agitation got worse. Jail deputies again treated his agitation as a behavioral problem instead of a medical one. They removed him from the Jail’s infirmary and confined him again in a special detention cell, where his agitation increased. They decided to remove him from the special detention cell to put him in restraints. He was unable to obey their commands, however, and they pepper sprayed him. When the first dose had no effect, they sprayed him again. He died shortly afterwards. Steven Phelps, March, 2001 47. Stephen Phelps arrived at the Jail in the early morning hours of March 23, 2001. The intake nurse learned of his past history of suicide attempts and reported that he was “elusive” to many questions in the initial psychiatric assessment. He was sent to the mental
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health cellblock with full suicide precautions, and the nurse sent a referral form to the mental health staff. Pursuant to that referral, Mr. Phelps was interviewed several days later by one of the Jail’s “mental health professionals,” an unlicensed counselor with no more than a bachelor’s degree. At that time, the counselor determined that Mr. Phelps was not suicidal. She cleared him for transfer to the Jail’s general population with a uniform, bedding, hygiene items, and all his permitted property. The form states “no other mental health services at this time.” The next day, Mr. Phelps hanged himself with his bedsheet.
Brian Bennett, November, 2001 48. In the fall of 2001, Brian Bennett, a 22-year-old pretrial detainee with a diagnosis of bipolar disorder and schizoaffective disorder, was receiving antipsychotic and moodstabilizing medication. In late October, however, while he was confined in the segregation unit under 23-hour-a-day lockdown for a disciplinary violation, he refused to continue taking his medication. On the morning of November 1, the Jail’s mental health staff decided to transfer him to an inpatient psychiatric hospital. There was no available bed, however, so he was placed on a waiting list. Instead of transferring him to the Jail’s infirmary where he could have medical supervision, Jail staff left him confined in the segregation unit. On the afternoon of November 1, he hanged himself with his pants. Investigation revealed that the staff had failed to perform the required 15-minute checks. Prisoner No. 2, November, 2001 49. In mid-November 2001, Prisoner No. 2, a pretrial detainee, was placed on “suicide watch” in the mental health cellblock at CJC. Nevertheless, without staff noticing or intervening, he broke off a piece of his artificial leg, sharpened the edge, and used it to cut his
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wrists. He then began climbing the stairs and, in a suicide attempt, plunged head first from an elevated portion of the mental health unit. He suffered serious injuries to his head and neck.
Prisoner No. 3, December, 2001 50. Prisoner No. 3, who has been diagnosed with bipolar disorder, was a prisoner in the CJC on December 29, 2001. Incident reports written by deputies state that at 7:45 pm, he reported hearing voices and said he was in crisis and becoming suicidal. The medical unit paged mental health workers, but they did not respond. More than two hours later, at 10:05, deputies made the decision to dress him in a suicide gown and lock him in a special detention cell while they awaited instructions from mental health. During the next hour, as deputies failed to conduct the required 15-minute checks, the prisoner’s condition deteriorated. At 11:18, a deputy finally checked and reported that the prisoner had been smearing feces in the cell and had scrawled “I need the toilet” in feces on the window of the cell door. Deputies resumed their 15-minute checks, but they left the prisoner in the filthy toiletless cell for more than an hour. At 12:08, a deputy noted that the prisoner again was “smearing feces on wall.” Deputies did not intervene until 12:23, when the prisoner began cutting his arm with a metal switch plate cover that he managed to remove and then sharpened on the brick wall. The Jail’s mental health staff never arrived. The prisoner was finally taken to the hospital, and then to the state mental hospital. 51. Over the next several weeks, Prisoner No. 3 bounced back and forth several times between the state mental hospital and the Jail. During his second stay at the jail, he became suicidal again and was placed in a different special detention cell, supposedly for his protection. In this cell, too, he managed to remove a metal cover plate, and he began cutting himself again. After returning again from the state hospital, he was placed in a medical holding cell at the
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Metro facility, where he opened an electrical box and began cutting himself with a piece of wire. He was then moved to another special detention cell, where he managed to break a light bulb and started to cut himself with the broken glass. The prisoner was then placed in a restraint chair, where he remained for the next 18 hours. Security guards, not mental health workers, made the decision to release him from the chair.
Prisoner No. 4, January, 2002 52. Prisoner No. 4 is a young woman who has been jailed and hospitalized numerous times as a result of her serious mental health problems. Her medical records show diagnoses of bipolar disorder with psychotic features and schizoaffective disorder. She has a history of multiple confinements in the Jail’s special detention cells, has been in restraints multiple times, including at least one time in the Jail’s restraint chair. 53. During a stay in the Jail in mid-January, 2002, the mental health staff determined that she should be sent to the state mental hospital, but she was placed on a waiting list because there were no beds available. Instead of housing her in the infirmary under medical supervision, however, the Jail assigned her to the regular cellblock for female prisoners. Over the next several days, she manifested bizarre and dangerous behavior that confirmed the need for inpatient psychiatric care, which she did not receive. 54. Deputies decided she was suicidal. Without calling mental health, they took her clothes, gave her a suicide gown, and put her in a special detention cell. A few hours later, deputies determined that she was no longer suicidal. They released her from the special detention cell, again without consulting with mental health.
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55. Three days later, a deputy looked in her cell and reported that she was “lying on the floor, naked, covered in food and making engine noises.” The spoon from the evening meal was missing. It was in her vagina. She was taken to the infirmary, where the spoon was removed. Her medical records show that she told the nurses that she heard voices that told her to put the spoon in her vagina. Instead of keeping her in the infirmary under medical observation, staff returned her immediately to the cellblock. Mental health was not contacted.
56. Upon return to the cellblock, deputies made the decision to put her in a special detention cell. She said she would scratch her eyes out. When she started to do so, deputies put her in restraints but did not call mental health. A few hours later, without consulting medical or mental health personnel, deputies determined that the threat had subsided, and they released her again into the regular cellblock.
57. The next day, an incident report states that she shoved a styrofoam food container into her vagina. A nurse and a mental health worker arrived that evening and administered medication but did not move her to the infirmary. Ultimately, she was admitted again to the state hospital.
FACTS RELATING TO NAMED PLAINTIFFS Mark Shook 58. Plaintiff Mark Shook began receiving psychiatric care before he reached adolescence. He has been diagnosed as suffering from Asperberger’s Syndrome, a form of autism, as well as bipolar disorder. Before he arrived at the Jail, he was regularly taking Zyprexa and Serzone prescribed by his psychiatrist. Once at the Jail, he went for several weeks without access to any medications. After three weeks, Shook finally saw the medical doctor, not a
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psychiatrist, who would not prescribe his regular medications because they were not on the Jail’s formulary.
James Robillard 59. Plaintiff Robillard’s medical records state that he was “actively suicidal” when he arrived in August, 2000. He has suffered from mood swings and has been diagnosed with bipolar disorder. 60. Before he was incarcerated, Plaintiff Robillard regularly took Paxil, which helped to control his symptoms. The Jail continued his prescription for the next eight months, on the condition that Robillard supply his own medications. By the spring of 2001, however, Robillard could no longer pay for the medications, and the Jail refused to continue the prescription. Robillard was referred to the Jail psychiatrist to recommend a different drug, and an accompanying note states “CMS will pay for the next 14 days of Paxil only.” The decision to discontinue Paxil was not made for medical reasons. 61. In January, 2001, when Mr. Robillard received a sentence of two years, he lost control of his emotions. The Jail’s incident report states that he said he would kill himself. As deputies tried to control him, he hit his head against the wall and cursed and cried. Deputies first placed Robillard in full body “fetal position” restraints and then in the restraint chair for almost three hours. Although the incident report states that Mr. Robillard was suicidal, no medical or mental health personnel were involved in the decision to initiate or to discontinue the use of the restraint chair. No mental health worker arrived during the nearly three hours Robillard spent in the restraint chair.
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62. Restraints are permissible only for the minimum amount of time that is necessary to control the emergency that justifies their use. The Jail’s incident report fails to document a continuing need for use of the restraint chair. On the contrary, the deputies who performed fifteen-minute checks repeatedly noted nothing more than Mr. Robillard “sitting quietly.”
Dennis Jones 63. Plaintiff Jones has been continuously confined in the jail since September, 2001. He has been diagnosed as bipolar, suffers from depression and anxiety, and has in the past considered suicide. Before he entered the Jail, he was prescribed a combination of Neurontin and valproic acid, which were successful in controlling his symptoms. For nearly a month after his incarceration he was denied any medication at all for his mental illness. When the Jail doctor finally gave him a prescription, he was limited to valproic acid only. The dosage he received was not sufficient to provide relief, but his request for an adjustment was refused. Blood samples taken for the purpose of monitoring the levels of his medication have been taken too soon or too long after his dose of medication, therefore rendering the blood test inaccurate and ineffective. 64. The named plaintiffs have diagnoses of serious mental illnesses that can require inpatient psychiatric care, and, if not properly treated, can lead to attempts at self-harm and suicide. As individuals with serious mental illness, the named plaintiffs have been harmed in the past and face a substantial risk of harm in the future because of the custom, pattern, practice, and usage of the defendants challenged here.
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DEFENDANTS’ ACTIONS AND DELIBERATE INDIFFERENCE 65. The mental health needs of the Jail’s prisoners have long been known to defendants and their staff, and defendants have full knowledge of the facts and the unconstitutional conditions set forth herein. In maintaining and failing to correct these conditions, defendants have acted, and continue to act, with deliberate indifference to plaintiffs’ and the class’ health, safety, and serious mental health needs, and to the risk that the named plaintiffs and the plaintiff class will suffer serious psychiatric harm, physical injury, or death. 66. In the course of litigation over the death of Michael Lewis on the Jail’s restraint board, see Paragraph 1, the Jail’s mental health system was evaluated by Richard Belitsky, M.D., of the Department of Psychiatry at the Yale University School of Medicine. In a written report submitted in 2001, Dr. Belitsky found “serious problems with the provision of mental health services at CJC,” including inadequate mental health staffing, inadequate oversight of the mental health program, and inadequate provision for emergency psychiatric evaluation of prisoners. Defendants have received copies of Dr. Belitsky’s report. They are aware of Dr. Belitsky’s findings and of the circumstances he describes, but have taken little corrective action. 67. The former medical services provider requested additional funding to enhance health care staffing at the Jail, including mental health staffing, but the defendants repeatedly rejected such requests. 68. Defendants have been named in at least four lawsuits in which some or all of the Jail conditions as set forth herein were described. They also received a notice of claim stating the facts alleged in paragraph 45.
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69. The conditions of confinement set forth in this Complaint result in the unnecessary and wanton infliction of pain, physical and psychological injury and imminent risk of serious injury or of death that is unrelated to any legitimate penological purpose. Defendants have acquiesced in and ratified these conditions, which amount to an official custom or policy of the defendants.
INJUNCTIVE AND DECLARATORY RELIEF 70. An actual and immediate controversy exists between the plaintiffs and the defendants. Plaintiffs contend that the conditions of confinement described herein are unconstitutional. Defendants contend that the conditions of confinement described herein are constitutional. Plaintiffs and the class are therefore entitled to a declaration of rights with respect to this controversy. 71. Defendants have acted, and continue to act, under color of state law to deprive plaintiffs of their constitutional rights. Plaintiffs are suffering irreparable injury, and will continue to suffer irreparable injury, as a result of the conditions described in this Complaint, unless those conditions are enjoined by this Court. Plaintiffs have no plain, adequate or speedy remedy at law, and are entitled to injunctive relief against defendants pursuant to 42 U.S.C. § 1983.
EXHAUSTION OF ADMINISTRATIVE REMEDIES 72. Each named plaintiff has exhausted all administrative remedies available to him.
FIRST CLAIM FOR RELIEF (Violation of Eighth and Fourteenth Amendments) 73. Plaintiffs incorporate paragraphs 1 through 72, above.
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74. By subjecting the named plaintiffs and the class members in their custody to the conditions set forth herein, with full knowledge of those conditions, defendants have acted, and continue to act, with deliberate indifference to their health, safety, and serious mental health needs, and have subjected them to cruel and unusual punishment, in violation of the Eighth and Fourteenth Amendments to the United States Constitution.
WHEREFORE, plaintiffs respectfully request that the Court: 75. Certify this action as a class action; 76. Enter a judgment declaring that defendants’ actions described herein are unlawful and violate plaintiffs’ and the plaintiff class’ constitutional rights; 77. Permanently enjoin defendants, their subordinates, agents, employees, and all others acting in concert with them from subjecting plaintiffs and the plaintiff class to the conditions set forth in this Complaint; 78. Grant plaintiffs their reasonable attorney fees and costs pursuant to 42 U.S.C. § 1988 and other applicable law; and 79. Grant such other relief as the Court considers just and proper.
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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 02-M-0651 (MJW) MARK SHOOK and DENNIS JONES, on behalf of themselves and all others similarly situated,
Plaintiffs, and JAMES VAUGHAN and SHIRLEN MOSBY,
Intervenor Plaintiffs,
v. THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF EL PASO and TERRY MAKETA, in his official capacity as Sheriff of El Paso County,
Defendants.
SUPPLEMENTAL CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF
________________________________________________________________________ 1. Plaintiffs, on behalf of themselves and all others similarly situated, file
this Supplemental Complaint pursuant to Fed. R. Civ. P. 15(d). This Supplemental Complaint sets forth events that have transpired since the filing of the original Complaint in this action (hereinafter “Complaint”) on April 2, 2002. Plaintiffs file this Supplemental Complaint based upon limited information, as they have not yet been permitted to conduct depositions, expert inspections, document discovery, or any other discovery under the Federal Rules of Civil Procedure.
2. Conditions in the El Paso County Jail continue to pose a substantial risk of serious harm or death to persons with serious mental health needs, and defendants
1

continue to act with deliberate indifference to this risk. In addition to this risk of harm, numerous prisoners with serious mental health needs have suffered actual harm, and in some cases death, as a result of defendants’ deliberately indifferent acts and omissions since the filing of the original Complaint.
3. Since the filing of the Complaint, at least three separate reports by outside investigators have documented the inadequate state of mental health care in the Jail. In October 2002, a citizens’ panel appointed by the Sheriff of El Paso County (hereinafter “Citizens’ Panel Report”) noted numerous deficiencies in the Jail’s mental health and suicide prevention measures.
4. On May 26, 2003, a consultant funded by the National Institute of Corrections, a division of the United States Department of Justice, issued a report “for the purpose of specifically reviewing the status of the mental health and suicide prevention programming in operation in the El Paso County Jails” (hereinafter “NIC Report”). The findings of this report make clear that conditions for mentally ill and suicidal prisoners at the Jail continue to present a grave risk of serious injury or death.
5. Most recently, a June 25, 2004 report by the National Commission on Correctional Health Care (NCCHC) (hereinafter “NCCHC Report”) noted that the Jail is out of compliance with several “essential” and “important” NCCHC standards, and states that “the facility does need to correct deficiencies noted on a priority basis.”
6. Despite these repeated warnings, defendants have failed to take meaningful corrective action. For example, defendants have failed take effective steps to ensure that the mental health services for which they have contracted with a private corporation are actually provided. As a result of defendants’ deliberate indifference,
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mental health services at the El Paso County Jail remain so systemically inadequate as to violate the Eighth and Fourteenth Amendments to the United States Constitution. Overcrowding, increasing mental health needs, and inadequate housing facilities for the mentally ill (see Complaint, ¶¶ 20-23)
7. The Jail’s population has more than doubled in the last ten years, and defendants project continued growth. On November 19, 2004, the Jail population reached 1,312, setting a new record. As currently stated on the El Paso County Sheriff’s Office website, “This high inmate population has forced us to house inmates in the dayrooms of many of the wards because of the lack of cell bed space availability. This jeopardizes safety/security and increases disciplinary problems.” The Sheriff’s website describes overcrowding as “severe” and adds that “[d]ue to the County’s growing population [and] the increasing jail population, we experienced an increase in inmate violence, suicide, and litigation.” The Citizens’ Panel Report similarly found that the Jail is “critically overcrowded” and that this overcrowding adversely affects the ability of Jail staff to identify and monitor prisoners who are mentally ill and/or suicidal. The NIC Report similarly noted that female prisoners who are suicidal or have “acute mental health needs” are housed with recently admitted prisoners, in a pod that is “overcrowded, with extra double bunks situated in the day room areas.”
8. As the Jail’s population increases, so too does the number of prisoners with serious mental health needs. In a recent deposition, the Sheriff’s Detention Bureau Chief stated that approximately 20% of the prisoners in the Jail are mentally ill. Thus, at any given time, there are approximately 260 mentally ill prisoners in the Jail. According to the Sheriff’s Office 2003 Annual Report, 22,625 persons were processed into the Jail in 2003; using the 20% figure, over 4,500 of those persons were mentally ill.
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Harm to class members 9. The systemic deficiencies in mental health services identified in the
original Complaint and in this Supplemental Complaint continue to pose a substantial risk of serious harm to Jail prisoners with serious mental health needs. In some cases, these deficiencies have led to serious harm or death.
Lack of adequate protection from self-harm and suicide (see Complaint, ¶¶ 4751)
10. The 2002 Citizens’ Panel Report, the 2003 NIC Report, and the 2004 NCCHC Report all pointed out major deficiencies in the Jail’s system for identifying prisoners who are at risk of suicide, and preventing them from harming or killing themselves. The NIC report described it as “an inefficient communication system that runs the danger of allowing someone to fall between the cracks.” Although both NCCHC standards and the Jail’s own policy require that all prisoners receive a comprehensive mental health evaluation, including assessment for suicide risk, within 14 days of admission, the NIC Report found that “not all inmates receive the comprehensive mental health screening to assess suicide risk.” More than a year later, the NCCHC Report found that incoming prisoners are still not receiving a mental health assessment within 14 days. The NIC Report found that medical staff received no advanced mental health and suicide risk training, and that training for deputies in suicide issues has actually been reduced. Finally, the NIC Report found that the Jail’s common use of the antidepressant Elavil is “worrisome,” given “its potential to be used to effect suicide.” (See ¶ 21, infra, describing two prisoners attempting suicide using Elavil).
11. Significantly, the May 2003 NIC Report refers to only two suicides at the Jail since January 2001, although it is undisputed that at least four pretrial detainees died
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by hanging in the Jail between March 2001 and February 2003. Nevertheless, the Report concludes that even these two suicides “may point to a need for better inmate management in the CJC.”
12. Since the filing of the Complaint, the Jail’s inadequate suicide prevention procedures have led to the suicides of two additional pretrial detainees, Douglas Spencer Parrish and Marca Anne Wilson, as well as numerous serious suicide attempts. Indeed, the Jail’s “Annual Report for Mental Health, 2003” states that there were 22 suicidal gestures and attempts in 2003, up from 16 in 2002.
Douglas Spencer Parrish 13. Douglas Spencer Parrish was booked into the Jail on June 5, 2002. Six
days later, on June 11, another prisoner found Parrish hanging by a sheet from an air vent in his cell. He died the following day. Parrish had hung a towel over his cell door, blocking the view into his cell, for 30 to 45 minutes before he was found hanging. According to one of the Jail’s commanders, it was impermissible for Jail staff to allow Parrish to cover the window in the cell door.
14. An April 2, 2002 note by a mental health worker, made during Parrish’s previous incarceration in the Jail, reports that he was “[complaining of] depression” and had “ineffective coping skills while incarcerated.” In addition, the autopsy report refers to a suicide attempt by Parrish a week before his June 5 arrest, which resulted in admission to a psychiatric hospital. There is no indication that either of these warnings resulted in any precautions being taken when Parrish was admitted to the Jail on June 5.
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Marca Anne Wilson 15. During Marca Anne Wilson’s incarceration in the Jail in September 2002,
deputies had repeatedly characterized her as “suicidal,” and noted that she had “tied something around her neck and made several statements that she wanted to kill herself.” She was repeatedly placed in restraints for her own protection. On one occasion was observed to be “severely scratch[ing] her wrists with her nails;” on another, she was “periodically striking her head against the window of the cell door.” Nevertheless, when she was readmitted to the Jail the following month, on October 14, 2002, she was classified as having no suicide potential.
16. Wilson’s condition continued to deteriorate. Jail incident reports on December 29, 30, and 31, 2002, and January 1 and 2, 2003, note bizarre, delusional behavior, sometimes accompanied by strange drawings and incoherent writings. On January 4, she was tearful and complained to mental health staff of paranoia and increased anxiety. On February 10, 2003, a mental health worker cleared her to be housed in a cell alone. Seven days later, she hanged herself with a sheet tied to the upper bunk. She died the following day.
Prisoner No. 5 17. Twenty-year-old Prisoner No. 5 was arrested and admitted to the Jail in
the early morning hours of May 25, 2003. On his Initial Classification Assessment Form, completed that same day, he indicated that he had attempted suicide 7 ½ years ago, had contemplated suicide 6 years ago, and had been a patient in a mental institution or psychiatric hospital 6 years ago, for 8-9 months. Similarly, his “Medical Screening Sheet,” dated May 25, 2003, stated that had tried to hurt or kill himself in the past; had
6

past mental health hospitalization; and was currently taking antidepressant medications. His “Health Evaluation,” dated May 25, 2003, indicated past psychiatric history and suicidal history. Prisoner No. 5’s “Inmate Alert Status Report,” dated June 1, 2003, noted that he had attempted suicide twice. Nevertheless, next to the item “suicide potential,” the form indicates a letter “N,” meaning “no.”
18. On the afternoon of May 25, Prisoner No. 5 wrote a kite to the medical staff stating “I am having thoughts about suicide. I need to speak to someone soon.” He was moved to the “mental health” ward and placed in a suicide gown. On May 31, 2003, he approached mental health staff and asked for sheets. The mental health counselor concluded that Prisoner No. 5 “presents as depressed but not an immanent [sic] danger to self.” The following day, another mental health counselor spoke with Prisoner No. 5, who said that he wanted to be evaluated at the state hospital. The counselor noted that Prisoner No. 5 “continue[s] to have a high level of depression,” but concluded that he “continues to present as depressed but not a risk to self.”
19. On June 9, 2003, Prisoner No. 5 wrote the following request to mental health staff: “I am having a real hard time and my problems are only getting worse. I need to speak with Mrs. Chris as soon as possible. I need help soon and it starting to seem like once again I am not getting the help I need.” On June 11, 2003, Prisoner No. 5 was seen by a mental health counselor, who noted that he “continues to [complain of] depression & wanting ‘help.’” The counselor further noted that Prisoner No. 5 “presents [with] flat/depressed affect, monotone, quiet speech, almost [no] eye contact.” The counselor concluded that Prisoner No. 5 “appears as depressed,” but “may also be manipulating for [secondary] gain.”
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20. Despite these clear and repeated warnings of Prisoner No. 5’s worsening depression and suicide potential, on June 24, 2003, he was able to attempt suicide in the Jail by hanging himself with a sheet tied to a power box in the “mental health” ward. By the time he was cut down by Jail staff, Prisoner No. 5 was unconscious, blue in color, and not breathing, and his pupils were non-reactive. Prisoner No. 5 was hospitalized; as of the following day, his condition remained critical.
Prisoner No. 6 21. Prisoner No. 6 has a long history of serious mental illness and suicidality.
He had been identified as a suicide risk during previous stays in the Jail. On April 10, 2003, he begged mental health staff to prescribe Seroquel, an anti-psychotic medication that had successfully controlled his symptoms in the past: “this seroquel is the best stuff I used to take it helped me to cope with life.” On April 14, 2003, mental health refused; “we do not have Seroquel on our formulary. If you can provide Seroquel that is a possibility.” Seven days later, Prisoner No. 6 attempted suicide by stealing a bottle of Elavil from a medication cart and taking several of the pills. He was taken by ambulance to the hospital, where he was placed on a ventilator. Another prisoner also attempted suicide on the same day with pills from the same bottle of Elavil and was also hospitalized. Despite these two suicide attempts using Elavil, and despite the May 2003 warning in the NIC Report that the Jail’s use of Elavil is “worrisome,” given “its potential to be used to effect suicide,” Elavil remains on the Jail’s formulary to this day.
Prisoner No. 7 22. Prisoner No. 7 arrived at the Jail on November 18, 2004. She had just
spent three days on the psychiatric ward of St. Francis Hospital after a suicide attempt on
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November 15. At the hospital, she saw the psychiatrist every day, who put her on Seroquel. She was released to the Jail with a prescription for Seroquel morning and night and additional doses “as needed.” She immediately wrote to the mental health staff asking for her psychiatric medications. Instead of providing Seroquel, however, the medical staff changed the medications, without a face-to-face consultation or any warning about possible side effects of the new drugs. She complained to mental health workers on several subsequent days. Eventually the Jail staff permitted the prisoner’s family to pick up the previously-written prescription form from the prisoner’s property, fill it at a community drugstore and bring the medications to the Jail. Ten days after arriving at the Jail, after she reported hearing voices, Prisoner No. 7 finally began receiving some, but not all, of the medications originally prescribed by the hospital psychiatrist.
23. In the following week, Prisoner No. 7 sent repeated written requests to the mental health staff reporting that she needed a higher dose or the more frequent administration of the medication that the hospital psychiatrist had authorized. The written requests became increasingly desperate, reporting deep anxiety, depression, and continued auditory hallucinations. On December 7, she wrote “I have requested and requested to see mental health regarding my medications and still nothing has happened. Please can we up my dosage. If not I may have a nervous brake [sic] down.” After several such requests had gone unanswered, Prisoner No. 7, despite being on a “suicide watch,” managed to ascend a stairway and jump off the top tier to the concrete floor below. Four weeks after arriving at the Jail and more than a week after this suicide
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attempt, the Jail’s psychiatrist met with her for the first time. The psychiatrist authorized the increased dosage of the medications.
Prisoner No. 8 24. Prisoner No. 8 was booked into the Jail on April 7, 2003. The previous
day, he had attempted suicide by hanging. According to Jail documents, his Medical/Mental Health Questionnaire “indicated strong history of suicide.” Upon intake, the Jail classified him as a suicide risk, but this alert was inexplicably canceled five days later. An incident on April 21, in which Prisoner No. 8 swallowed medication given to him by another prisoner, did not result in renewal of the suicide alert. On May 1, 2003, Prisoner No. 8, though housed in the “mental health” ward, was able to hang himself with a sheet tied to a pipe approximately 20 feet above the floor. One prisoner reported that Prisoner No. 8 had been talking about killing himself for over a week, and that the prisoner had informed Jail staff of this. Numerous witnesses reported that when Prisoner No. 8 began tying the noose around his neck, the deputy on duty was not in the ward. Prisoner No. 8 was cut down and taken to the hospital by ambulance. A memorandum dated May 2, 2003, states that Prisoner No. 8’s “mental and physical state is still in question as of this date.”
25. Immediately upon Prisoner No. 8’s return from the hospital, he was stripped naked and placed in a barren medical holding cell with only a blanket to cover himself. There is no indication that mental health staff participated in or approved this decision. The harsh and degrading environment of the holding cell caused Prisoner No. 8 to become suicidal again.
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Prisoner No. 9 26. On March 2, 2003, Prisoner No. 9 fashioned a rope from a sheet and
hanged himself in a shower stall at the Metro Detention Facility. Another prisoner found Prisoner No. 9 hanging and alerted staff. Prisoner No. 9 was cut down; he was foaming at the mouth and unresponsive at the time. He was sent by ambulance to the hospital. The physician at the hospital ultimately released Prisoner No. 9 with instructions that he be housed in a “suicide unit.” A subsequent investigation found that the deputy had failed to check the unit every 30 minutes as required by policy.
Failure to provide appropriate medication for prisoners with serious mental health needs (see Complaint, ¶¶ 36-41)
27. Defendants fail to provide adequate medication for prisoners whose serious mental health needs require it. One aspect of this failure is defendants’ policy and practice of removing serious mentally ill prisoners from medications on which they have been successfully stabilized, and substituting cheaper and less effective medications, often resulting in catastrophic psychiatric deterioration. The medications available to mentally ill prisoners are limited to those on the Jail’s formulary, which the NIC Report describes as “largely antiquated.” The NIC Report also describes the Jail’s practice of discontinuing psychotropic medications for incoming prisoners as “somewhat disturbing.”
28. In addition, defendants arbitrarily provide that certain mental health disorders, such as sleep disorders and anxiety disorders, will not be treated at all. A document titled “Medical Services Summary Information” informs Jail prisoners that “Mental health services are not comprehensive; medication(s) to stabilize may be provided. … [S]leep disorders and anxiety services are not available” (emphasis added).
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29. Defendants also initiate, change, or discontinue psychotropic medications without a face-to-face interview with the patient by qualified mental health staff, and fail to provide adequate monitoring of the clinical effectiveness and side effects of psychotropic medications once prescribed. Prisoner No. 10
30. Prisoner No. 10 was first diagnosed as manic depressive when she was 14 years old. She states that she shows signs of schizophrenia durng what she describes as her break-down periods, and she reports that her condition has been getting worse in recent years. Shortly before arriving at the El Paso County Jail in mid-April, 2003, she received in-patient psychiatric care, and her psychiatrist told her she would need to take medication the rest of her life.
31. At the Jail, she immediately began asking to resume the psychiatric medications she had successfully taken in the past. Over the next two months, she sent numerous and repeated written requests, without success. In response to one of those requests, nearly two months after she arrived at the Jail, a mental health assistant wrote back and said “please be patient.” On June 26, prisoner No. 10 wrote again saying she still has not received any type of mental health medication. In response, the jail’s Mental Health Coordinator wrote:
“Correctional Healthcare is unable to provide Paxil for you. Paxil is not on our formulary. On 4.30.03 the doctor noted that you had problems taking Prozac. The goal is to find a substitute. The next best medication is Prozac. Are you willing to try Prozac again?”
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Prisoner No. 4 32. Prisoner No. 4 is a severely mentally ill young woman with a long history
of psychiatric hospitalization as a result of her serious mental health problems. One of her previous incarcerations in the Jail is described in the Complaint at ¶¶ 52-57.
33. Prisoner No. 4 arrived at the Jail from the Colorado Mental Health Institute at Pueblo (CMHIP), the state psychiatric hospital, on August 28, 2003. Her discharge summary from CMHIP stated that she was “stabilized sufficiently” to be discharged to the Jail. Among the medications on which she had been stabilized at CMHIP was Zyprexa, an antipsychotic medication; a supply of this medication accompanied her to the Jail. However, a September 1, 2003 note in her Jail medical file states that her supply of Zyprexa had run out. Rather than continue this medication, the following day Jail medical staff wrote an order to substitute Navane, a less expensive medication. Prisoner No. 4 refused to take Navane, and her condition deteriorated. On November 1, 2003, she was observed talking to herself. On November 12, 2003, she said she was hearing voices telling her that she would be dead by the end of the week. On November 28, 2003, she was placed in restraints (see ¶ 57, infra). A December 18, 2003 observation log notes that she was talking about hallucinations and voodoo. Prisoner No. 11
34. Prisoner No. 11 suffers from bipolar disorder and has an extensive history of psychiatric hospitalization. During his incarceration in the Colorado Department of Corrections in 2003, this condition was successfully treated with Neurontin, a mood stabilizer. When Prisoner No. 11 entered the Jail on January 30, 2004, he told mental health staff of his successful treatment with Neurontin, and added that he suffers negative
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side effects with lithium. Nevertheless, Jail staff told him that Neurontin was not available because it is too expensive, and wrote an order to substitute lithium for Neurontin. Prisoner No. 11 repeatedly told staff that the lithium was causing negative side effects, and ultimately refused to take it. His mental health and his behavior deteriorated. On March 10, 2004, he was involved in an altercation with another prisoner; Jail staff pepper-sprayed him. On May 24, 2004, he was involved in another altercation; staff threatened to shock him with a taser. On May 26, 2004, he wrote to staff, “I need some medication for the voices I’m starting to hear and something for my mood swings. I know they are trying to get me.” On June 3, 2004, he wrote a note stating that “the Mason’s and Illuminati’s are part of a conspiracy to kill me. I seen my lawyer signing the judge to kill me. I have a chip they implanted in my brain to make me a criminal[.]” Prisoner No. 12
35. Prisoner No. 12 has a history of psychiatric hospitalization and being prescribed powerful anti-psychotic medications. On March 31, 2004, Prisoner No. 12 wrote to mental health to request medication; “I am going crazy in this cell and I feel like I am about to snap.” Four days later, he again asked for treatment for his anxiety; “I feel very anxious and agitated and worried and impatient.” Mental health staff responded that “CHM [the Jail’s contract medical provider] does not provide medication solely for the purpose of anxiety.”
Inappropriate use of “special detention cells” to confine persons with serious mental health needs (see Complaint, ¶¶ 24-25, 46, 50-57)
36. Defendants continue to confine prisoners who are suicidal or suffer from serious mental illness in “special detention cells.” The conditions in these cells – which
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have no bed, no toilet, and no sink – violate minimal standards of decency. Moreover, the isolated, harsh, and degrading conditions in these cells pose a grave risk of exacerbating suicidality and other serious mental illness.
Prisoner No. 13 37. Prisoner No. 13 has a long history of psychiatric hospitalizations and
diagnoses dating at least to the early 1990s. He has been diagnosed as bipolar with schizoaffective disorder and also as paranoid schizophrenic. He has been continuously incarcerated in the El Paso County Jail as a pretrial detainee since September 2003, except for several months in the state psychiatric hospital in Pueblo between March and June, 2003.
38. When prisoners are placed in “special detention” cells, deputies are supposed to record certain information on a “special detention documentation” form. One section requires deputies to document the fact that they notified the mental health staff and the time the staff was notified. Prisoner No. 13 has been confined in a “special detention” cell eight times. In only two of the eight cases do the forms indicate that deputies notified mental health staff while the prisoner was confined in the special detention cell. None of the incident reports indicates that mental health staff were consulted about the need to place the prisoner in a special detention cell, nor about the decision to return the prisoner to the regular ward. Prisoner No. 14
39. Prisoner No. 14 was admitted to the Jail on or about January 16, 2004. He has a history of multiple suicide attempts and psychiatric hospitalization. He has been diagnosed by Jail mental health personnel as suffering from major depression and post-
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traumatic stress disorder. A January 16, 2004 entry in Prisoner No. 14’s mental health file indicates that he has current suicidal ideation with a plan; a note the following day states that he “presents to be depressed and at risk of self-harm.” The Jail’s “Basic Classification Report” on Prisoner No. 14 identifies him has having “suicide potential.”
40. On June 29, 2004, following an altercation, Prisoner No. 14 was placed in a “special detention cell” at the Metro Jail. Mental health staff were not contacted until more than five hours later. A memorandum from a lieutenant states that Prisoner No. 14 was placed in the special detention cell “naked as is [Jail] procedure.” According to the lieutenant, “[t]he use of [the special detention cells] has been very restricted for years and only recently has there been an ideological change that incorporates the use of these detention cells for behavior modification and severe incident intervention.” The cell had no toilet, but only a hole in the floor covered with a metal grate. Prisoner No. 14 was told by Jail staff that, when he defecated, he was to push his feces through the grate with his hands. When Prisoner No. 14’s attorney came to meet with him on June 30, Jail staff refused to bring Prisoner No. 14 to the attorney visiting room; instead, the attorney was taken to see Prisoner No. 14 in the special detention cell. Prisoner No. 14 was naked, as he still had been given no clothing at this time.
41. A July 6, 2004 “behavior modification” plan for Prisoner No. 14 was created by custody staff, with no apparent participation by mental health staff. The plan provides for Prisoner No. 14 to be housed in a special detention cell, and states that “[a]ll of his remaining personal belongings will be confiscated.” It further states that “[h]e will be stripped of his jumpsuit and given a suicide gown. He will not be allowed books, including a Bible. He will not be afforded a mattress or pillow.” The plan further
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provides that Prisoner No. 14 may be placed in a restraint chair, but contains no requirement that mental health staff be consulted or notified before this is done.
Prisoner No. 4 42. On the evening of April 1, 2003, Prisoner No. 4 began talking to a deputy
about killing herself. The deputy contacted the medical unit and asked that Prisoner No. 4 be housed in a medical cell, but this request was refused. A short time later, Prisoner No. 4 was found curled in a fetal position on the floor next to the deputies’ desk. In the early morning hours of April 2, Prisoner No. 4 again said she was going to kill herself. She was eventually placed in a special detention cell in handcuffs and leg irons. A deputy threatened to shock her with a taser. When she began screaming and banging her head against the window of the cell, a helmet was placed on her head and secured with tape. The “Special Detention Documentation” form indicates that mental health staff was not notified.
43. On several other occasions (April 11, 12, 20, 21, and 25, 2003; May 11, 2003; November 7, 2003), Prisoner No. 4 was placed in a special detention cell for nothing more than verbal disruption. On all of these occasions, the “Special Detention Documentation” form either indicates that mental health staff was not notified, or it is not completed.
Restraints and use of force against prisoners with serious mental health needs (see Complaint, ¶¶ 25, 33-35, 46)
44. Jail staff continue to use pepper spray against prisoners with mental illness (see ¶ 34, supra). Moreover, in March 2003, the Jail security staff began carrying and using electroshock weapons, known as “tasers.” These weapons deliver a painful and incapacitating electric shock. Their use by law enforcement and correctional staff has
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been implicated in scores of deaths throughout the United States in the last four years. The use of these weapons on mentally ill persons can cause substantial harm, including the exacerbation of their mental illness. The use of such weapons on persons who are taking psychotropic medications is particularly dangerous and can result in physical injury or death.
45. Despite these serious risks, the Jail’s written policy on use of tasers contains no warnings about their use on persons with mental illness or persons who are taking psychotropic medications. Indeed, faced with a policy that imposes few meaningful restrictions on their use, Jail staff sometimes use these dangerous weapons in situations in which there is no need to use force at all.
46. Placing a prisoner in full-body restraints, such as a restraint chair, poses a serious risk of injury or death, and thus must be used only as a last result resort when necessary to prevent imminent harm to the prisoner or to others. Moreover, such restraints may be continued only as long as they remain necessary to prevent imminent harm. Defendants sometimes place mentally ill prisoners in restraints, including the restraint chair, in circumstances in which there is no risk of harm. Rather, the restraint chair is sometimes used as summary punishment for verbal disruption. In addition, defendants fail to consult with, or even notify, mental health staff when mentally ill prisoners are placed in the restraint chair. Finally, defendants leave mentally ill prisoners in the restraint chair long after any conceivable risk of harm has passed.
Prisoner No. 12 47. On March 24, 2004, security staff made the decision to place Prisoner No.
12 in the restraint chair. There is no allegation in Jail documents that Prisoner No. 12
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posed any risk of harm to himself or to anyone else. The only justification for placing him in the restraint chair is that he was “yelling to other inmates and seemed to be encouraging them to become disruptive.” There is no indication that mental health staff were consulted regarding the decision to place Prisoner No. 12 in the restraint chair, or notified after he was placed in the chair. The “Level Three Restraint Documentation” Form, on which deputies are to record periodic welfare checks on prisoners in the restraint chair, was not completed.
Prisoner No. 15 48. Prisoner No. 15, who turned 21 in the El Paso County Jail in December,
2004, first received in-patient psychiatric care when she was 10 years old. She was hospitalized in psychiatric units again in 1994 and 1998. In 2000, she was a patient at the Colorado Mental Health Institute at Pueblo. She has a past history of suicide attempts and a diagnosis of bipolar disorder with psychotic features.
49. Prisoner No. 15 spent several months in the Jail in 2003. On May 19, 2003, shortly after the Jail authorities switched her psychiatric medications, deputies wrote that the prisoner “became disruptive” in her cell and then resisted the deputies’ efforts to place her in a special detention cell. The deputies’ report shows that she was placed in handcuffs and leg irons and threatened with a taser. After arriving at the special detention cell, deputies decided, without consulting with the Jail’s mental health staff, to strap her into the Jail’s restraint chair to prevent her from harming herself. After she was strapped down, she was threatened with use of the taser again when she did not lift her head as ordered so that the deputies could take her photograph. Two hours later, deputies
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decided, again without consulting the Jail’s mental health staff, that it was safe to release her from the restraint chair and, later, from the special detention cell.
50. Prisoner No. 15 was 3 months pregnant when she began a 40-day sentence at the Jail on November 18, 2004. At intake, the nurse noted the prisoner’s history of psychiatric hospitalizations and her diagnosis as bipolar. She also noted that the prisoner had stopped taking her medications because of her pregnancy. The intake nurse further noted that the prisoner appeared agitated and was biting herself, and she asked the mental health staff to follow up.
51. The next day, a mental health assistant interviewed the prisoner. The interview notes confirm that the prisoner is bipolar and has not been taking medications because of her pregnancy. The notes conclude that the prisoner requires no mental health services. The prisoner was encouraged to send written requests to mental health on an asneeded basis.
52. A month later, on December 18, 2004, Prisoner No. 15 experienced what she later described to the Jail’s disciplinary committee as a “psychotic episode.” The deputies responded first by handcuffing her and then using a knife to cut off the top of her Jail uniform. They pulled off her pants and underpants and put her in a suicide gown. Then they strapped her into the Jail’s restraint chair. The Jail’s incident report shows that deputies made the decision to put her in the restraint chair “for her safety,” without consulting the medical or mental health staff. After an hour in the chair, she told a deputy that she had to urinate, but the deputy refused to let her use a toilet. The deputy told Prisoner No. 15, “you can piss all over yourself for all I care.” After about two hours, deputies also made the decision, again without consulting medical or mental health
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staff, that it was safe to release Prisoner No. 15 from the restraint chair and return her to the cellblock.
Prisoner No. 13 53. In October, 2003, Prisoner No. 13 was in 23-hour lockdown and on
suicide watch. During his one hour out of the cell, the prisoner was allowed to review his mail but was told he could not take any of the letters back into his cell. After the hour out, the prisoner returned to his cell with one of the letters, which he insisted was private because it concerned medical matters. The prisoner declined to return it to the deputies, and they decided to take it back by force. They administered a 50,000 volt shock from a taser, forced the prisoner to the floor, handcuffed him, and took him to a special detention cell.
54. In January 2004, a member of the mental health staff ordered that Prisoner No. 13 be put on suicide alert and placed in a suicide gown. The prisoner refused to put on the suicide gown. Deputies then inflicted a 50,000-volt electric shock with a taser, despite their knowledge that the prisoner was taking psychiatric medications. They placed the prisoner face down on the floor, handcuffed him behind his back, and shackled his legs with leg irons. Deputies then took him to a special detention cell, removed his clothes, and placed him in a suicide gown. The prisoner tried to bang his head on the floor, and the deputies decided to strap the prisoner into a restraint chair. The mental health staff was not consulted about using the taser or using the restraint chair. After several hours, again without consulting any mental health staff, deputies decided to remove the prisoner from the restraint chair, and, after another hour, from the special detention cell.
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Inadequate mental health and custody staffing (see Complaint, ¶¶ 30, 32) 55. Defendants fail to provide adequate numbers of qualified staff to provide
for the needs of prisoners with serious mental health needs. Mental health staffing at the Jail is inferior, in both numbers and qualifications of staff, to mental health staffing at other Colorado jails. As a result, prisoners who are in acute distress often remain untreated for hours or days. In addition, inadequate custody staffing results in prisoners with serious mental health needs not being supervised by deputies, with the result that they are able to harm themselves or attempt suicide (see ¶ 24, supra, describing a suicide attempt that occurred while the deputy on duty in the “mental health” ward was absent from the ward). Finally, the staff that do exist are inadequately trained in mental health issues. Some of the mental health counselors, who make such critical decisions as whether a prisoner is a suicide risk, are unlicensed and have only a bachelor’s degree.
56. Both the Citizens’ Panel Report and the NIC Report found inadequacies in mental health staffing. The Citizens’ Panel Report called for the hiring of additional mental health staff, as well as increased mental health training for deputies and for the medical staff who evaluate incoming prisoners. The NIC Report noted reports by Jail staff that “during the recent suicide crises, … the [mental health] counselors did not respond by coming into the facility.” The NIC Report also noted that mental health staff “are behind on reevaluating inmates who are under mental health watches,” and “there appears to be no particular attention paid to the inmates placed in the mental health unit.”
Prisoner No. 4 57. On November 28, 2003, Prisoner No. 4 was taken to a special detention
cell and placed in restraints, and medical staff were called to check on the restraints. At
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2:10 a.m., a note in the medical record notes “inmate getting more aggressive.” The nurse on the scene tried to reach an on-call physician or physician assistant to authorize medication. Seven attempts to reach an on-call provider, over a period of several hours, were unsuccessful. In the meantime, Prisoner No. 4 was urinating and defecating on the floor of the toiletless special detention cell. A physician was not reached until approximately 4 ½ hours later.
Prisoner No. 12 58. Prisoner No. 12 was admitted to the Jail on or about December 11, 2002.
Presumably because of his history of psychiatric hospitalization and being prescribed powerful anti-psychotic medications, mental health staff placed him on the list to see the psychiatrist on December 19, 2002. Over the next month, Prisoner No. 12 complained of depression and hearing voices, and begged to see the psychiatrist. The mental health staff told him to “be patient” and said that “it takes time to see the psychiatrist because he is here once per week & there are people on that list before you.” As of January 16, 2003, Prisoner No. 12 still had not been seen by the psychiatrist.
Class action allegations 59. All class members are equally subject to defendants’ policies and practices
regarding the treatment of prisoners with serious mental health needs. The mental health care all class members receive is governed by a single contract. The treatment of all class members is governed by policies promulgated by a single decisionmaker: defendant Terry Maketa.
60. The policies and practices of defendants to which all class members are equally subject include, but are not limited to:
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61. Defendants’ policy of failing to provide sufficient numbers of mental health and custody staff, with adequate training, to provide for the serious mental health needs of class members.
62. Defendants’ policy of failing to provide safe and appropriate housing for prisoners with serious mental health needs.
63. Defendants’ policy of using “special detention cells” to house prisoners exhibiting signs of mental illness.
64. Defendants’ policy of failing to provide inpatient psychiatric care for prisoners whose serious mental health needs require it.
65. Defendants’ policy of inappropriately using restraints, pepper spray, and electroshock weapons (“tasers”) against prisoners exhibiting signs of mental illness.
66. Defendants’ policy of failing to maintain an adequate system to provide appropriate medication to prisoners whose serious mental health needs require it and to monitor the effects of that medication.
67. Defendants’ policy of failing to provide adequate screening and precautions to prevent self-harm and suicide.
Prayer for relief 68. WHEREFOR, in addition to the relief sought in plaintiffs’ original
Complaint, plaintiffs respectfully request that the Court enjoin defendants to: a. provide sufficient numbers of mental health and custody staff, with adequate training, to provide for the serious mental health needs of class members;
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b. provide safe and appropriate housing for prisoners with serious mental health needs;
c. discontinue use of the “special detention cells” to house prisoners exhibiting signs of mental illness;
d. provide inpatient psychiatric care for prisoners whose serious mental health needs require it;
e. cease using restraints, pepper spray, and electroshock weapons (“tasers”) against prisoners exhibiting signs of mental illness in circumstances that pose a substantial risk of serious harm to such prisoners;
f. implement an adequate system to provide appropriate medication to prisoners whose serious mental health needs require it and to monitor the effects of that medication; and
g. provide adequate screening and precautions to prevent self-harm and suicide.
Respectfully submitted January 24, 2005.
____________________________________ Mark Silverstein Legal Director American Civil Liberties Union of Colorado 400 Corona Street Denver, Colorado 80218 Telephone: (303) 777-5482 Fax: (303) 777-1773
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David C. Fathi The National Prison Project of the ACLU Foundation, Inc. 733 15th Street NW, Suite 620 Washington, D.C. 20005 (202) 393-4930 Practice Limited to Federal Courts Thomas S. Nichols DAVIS GRAHAM & STUBBS LLP 1550 Seventeenth Street, Suite 500 Denver, Colorado 80202 DC Box 03 (303) 892-9400
In cooperation with the American Civil Liberties Union Foundation of Colorado ATTORNEYS FOR PLAINTIFFS AND PLAINTIFF-INTERVENORS
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 Case: 1:02-cv-651 As of: 07/30/2017 09:52 AM MDT 1 of 13
REOPEN,TERMED
U.S. District Court District of Colorado (Denver) CIVIL DOCKET FOR CASE #: 1:02−cv−00651−RPM

Shook, et al v. El Paso Cty Bd Commr, et al Assigned to: Judge Richard P. Matsch Demand: $0 Case in other court: USCA, 06−01454 Cause: 42:1983 Civil Rights Act Plaintiff Mark Shook on behalf of himself and all others similarly situated
Plaintiff James Robillard on behalf of himself and all others similarly situated TERMINATED: 12/03/2002

Date Filed: 04/02/2002 Date Terminated: 09/22/2006 Jury Demand: Defendant Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by David Cyrus Fathi American Civil Liberties Union−DC 915 15th Street, N.W. Suite 600 Washington, DC 20005 202−548−6603 Fax: 202−393−4931 Email: dfathi@npp−aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark Silverstein American Civil Liberties Union−Denver 303 East 17th Street Suite 350 Denver, CO 80203 303−777−5482 Fax: 303−777−1773 Email: msilver2@att.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas S. Nichols Davis Graham & Stubbs, LLP−Denver 1550 17th Street Suite 500 Denver, CO 80202 303−892−7387 Fax: 303−892−1379 Email: tom.nichols@dgslaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David Cyrus Fathi (See above for address) TERMINATED: 12/03/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark Silverstein (See above for address) TERMINATED: 12/03/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas S. Nichols (See above for address) TERMINATED: 12/03/2002 LEAD ATTORNEY

Case: 1:02-cv-651 As of: 07/30/2017 09:52 AM MDT 2 of 13

ATTORNEY TO BE NOTICED

Plaintiff
Dennis Jones on behalf of himself and all others similarly situated

represented by David Cyrus Fathi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark Silverstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas S. Nichols (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Intervenor Plaintiff Lottie Elliott
Intervenor Plaintiff Thomas Reinig
Intervenor Plaintiff Victor Siegrist TERMINATED: 09/22/2006

represented by Thomas S. Nichols (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark Silverstein (See above for address) ATTORNEY TO BE NOTICED
represented by Thomas S. Nichols (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark Silverstein (See above for address) ATTORNEY TO BE NOTICED
represented by Thomas S. Nichols (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
El Paso County, Board of County Commissioners of El Paso County

represented by Gordon Lamar Vaughan Vaughan & DeMuro−Colorado Springs 111 South Tejon Street Suite 545 Colorado Springs, CO 80903 719−578−5500 Fax: 578−5504 Email: vnd@vaughandemuro.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jay Allen Lauer

Case: 1:02-cv-651 As of: 07/30/2017 09:52 AM MDT 3 of 13

El Paso County Attorney's Office−Main Office 200 South Cascade Avenue Colorado Springs, CO 80903 719−520−7370 Fax: 719−520−6487 Email: jaylauer@elpasoco.com TERMINATED: 10/16/2007 LEAD ATTORNEY

Sara Ludke Cook Vaughan & DeMuro−Colorado Springs 111 South Tejon Street Suite 545 Colorado Springs, CO 80903 719−578−5500 Fax: 719−578−5504 Email: vnd@vaughandemuro.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew Coleman Gorgey Garfield County Federal Mineral Lease District 817 Colorado Avenue Suite 201 Glenwood Springs, CO 81601 970−945−1347 Email: gencounsel@garfieldfmld.org ATTORNEY TO BE NOTICED

Thomas S. Nichols (See above for address) ATTORNEY TO BE NOTICED

Defendant
John Wesley Anderson in his official capacity as Sheriff of El Paso County TERMINATED: 04/01/2005

represented by Gordon Lamar Vaughan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jay Allen Lauer (See above for address) TERMINATED: 10/16/2007 LEAD ATTORNEY

Sara Ludke Cook (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Terry Maketa in his official capacity as Sheriff of El Paso County

represented by Gordon Lamar Vaughan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jay Allen Lauer (See above for address) TERMINATED: 10/16/2007 LEAD ATTORNEY

Andrew Coleman Gorgey (See above for address)

Case: 1:02-cv-651 As of: 07/30/2017 09:52 AM MDT 4 of 13

Thomas S. Nichols (See above for address)

V. Intervenor Defendant John Wesley Anderson in his official capacity as Sheriff of El Paso County Intervenor Defendant El Paso County, Board of County Commissioners of El Paso County
Intervenor Defendant Terry Maketa in his official capacity as Sheriff of El Paso County
Intervenor Plaintiff Shirlen Mosby
Intervenor Plaintiff James Vaughan

represented by Sara Ludke Cook (See above for address) ATTORNEY TO BE NOTICED
represented by Gordon Lamar Vaughan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jay Allen Lauer (See above for address) TERMINATED: 10/16/2007 LEAD ATTORNEY
Andrew Coleman Gorgey (See above for address)
Sara Ludke Cook (See above for address) ATTORNEY TO BE NOTICED
Thomas S. Nichols (See above for address)
represented by Gordon Lamar Vaughan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jay Allen Lauer (See above for address) TERMINATED: 10/16/2007 LEAD ATTORNEY
Andrew Coleman Gorgey (See above for address)
Thomas S. Nichols (See above for address)
represented by Thomas S. Nichols (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Thomas S. Nichols (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:02-cv-651 As of: 07/30/2017 09:52 AM MDT 5 of 13

Date Filed 04/02/2002 04/02/2002 04/02/2002 04/19/2002 04/19/2002
04/23/2002 04/25/2002 04/26/2002
04/26/2002
05/13/2002 05/13/2002 05/22/2002 05/22/2002
05/22/2002
05/30/2002 05/30/2002
06/03/2002 06/03/2002
06/07/2002 06/11/2002

# Docket Text
1 Class Action COMPLAINT for Injunctive and Declaratory Relief (Summons(es) issued) (bpm) Modified on 04/02/2002 (Entered: 04/02/2002)
2 MOTION by plaintiff to certify class action and supporting authorities (bpm) (Entered: 04/02/2002)
FILING FEE PAID: on 4/2/02 in the amount of $ 150, receipt # 233715. (bpm) (Entered: 04/02/2002)
3 Unopposed MOTION by defendants to extend time to 5/13/02 to file answer/response to cmp and response to mtn for class certification (lam) (Entered: 04/22/2002)
4 ORDER by Judge Richard P. Matsch granting dfts' motion to extend time to 5/13/02 to file answer/response to cmp and response to mtn for class certification [3−1] (cc: all counsel) ; entry date : 4/22/02 (lam) (Entered: 04/22/2002)
5 ATTORNEY APPEARANCE for plaintiffs by Thomas S. Nichols (lam) Modified on 04/24/2002 (Entered: 04/24/2002)
6 Notice of ATTORNEY APPEARANCE for plaintiffs by David Cyrus Fathi (lam) (Entered: 04/26/2002)
7 RETURN OF SERVICE of Summons and Complaint upon defendant El Paso Cty Bd Commr on 4/4/02 by leaving wtih Eileen F. Gilbert, Deputy Clerk (lam) (Entered: 04/26/2002)
7 RETURN OF SERVICE of Summons and Complaint upon defendant John Wesley Anderson on 4/4/02 by leaving with Donald E. Walsh, agent (lam) (Entered: 04/26/2002)
8 MOTION by defendants to dismiss , or for summary judgment (dlb) (Entered: 05/14/2002)
9 RESPONSE by defendant to motion to certify class action and supporting authorities [2−1] (dlb) (Entered: 05/14/2002)
10 Unopposed MOTION by plaintiffs to extend time to 6/4/02 to file reply in support of mtn to certify class (lam) (Entered: 05/23/2002)
11 Amended Proof of Service (CERTIFICATE OF MAILING BY PARTY) of pla's unopppsoed motion to extend time to 6/4/02 to file reply in support of mtn to certify class [10−1] (lam) (Entered: 05/23/2002)
12 MINUTE ORDER : by Judge Richard P. Matsch granting motion to extend time to 6/4/02 to file reply in support of mtn certify class [10−1] (cc: all counsel) ; entry date : 5/23/02 (lam) (Entered: 05/23/2002)
13 Unopposed MOTION by plaintiffs to extend time to file response to mtn to dismiss to 6/11/02 (lam) (Entered: 05/31/2002)
14 MINUTE ORDER : by Judge Richard P. Matsch granting pla's motion to extend time to file response to mtn to dismiss to to 6/11/02 [13−1], [8−1], [8−2] (cc: all counsel) ; entry date : 6/3/02 (lam) (Entered: 06/03/2002)
15 Unopposed MOTION by plaintiffs for second 1 wk ext of time for plas to file reply in support of mtn to certifiy class (lam) (Entered: 06/04/2002)
16 MINUTE ORDER : by Judge Richard P. Matsch granting pla's motion to ext time to file reply to 6/11/02 re: mtn to certifiy class [15−1], regarding [2−1] (cc: all counsel) ; entry date : 6/5/02 (lam) (Entered: 06/05/2002)
17 Unopposed MOTION by plaintiffs for order to withdraw Robillard as named pla and to change case caption (lam) (Entered: 06/07/2002)
18 REPLY by plaintiffs in support of motion to certify class [2−1] (lam) (Entered: 06/11/2002)

Case: 1:02-cv-651 As of: 07/30/2017 09:52 AM MDT 6 of 13

06/11/2002 06/11/2002 06/11/2002 06/18/2002 06/21/2002
06/21/2002 06/21/2002 06/24/2002
06/28/2002 07/03/2002 07/10/2002
07/25/2002 07/26/2002 07/29/2002 08/07/2002 08/14/2002 08/15/2002 08/21/2002 08/23/2002 08/27/2002
08/30/2002

19 Memorandum (BRIEF) by plaintiffs in opposition to motion to dismiss [8−1], or, in the alternative for summary judgment [8−2] (lam) (Entered: 06/11/2002)
20 DECLARATION of Michael H. Gendel, M.D. by plaintiffs (lam) (Entered: 06/11/2002)
21 DECLARATION of Deborah Van Den Honert by plaintiffs (lam) (Entered: 06/11/2002)
22 Advisory (STATEMENT) re: suicide in El Paso Cnty Jail by plaintiffs (lam) (Entered: 06/19/2002)
23 ORDER for Supplemental Briefing by Judge Richard P. Matsch regarding [2−1] motion to certify class action and supporting authorities; the parties have to 7/10/02, to submit suppl briefs regarding the applicability of the Prison Lit Reform Act to the question of class cert for protective relief (cc: all counsel) ; entry date : 6/24/02 (former empl) (Entered: 06/24/2002)
24 MOTION by Dfts' to strike Pla's Advisory statement regarding Suicide in El Paso County Jail [22−1] (erv) (Entered: 06/24/2002)
25 Unopposed MOTION by Dfts' to extend time to File a Reply in support of their Motion for Sum Jgm up to and incl 7/24/02 (erv) (Entered: 06/24/2002)
26 MINUTE ORDER : by Judge Richard P. Matsch granting motion to extend time to File a Reply in support of their Motion for Sum Jgm up to and incl 7/24/02 [25−1] (cc: all counsel) ; entry date : 6/25/02 (pap) (Entered: 06/25/2002)
27 Supplemental BRIEF FILED by plaintiffs regarding applicability of the PLRA to motion to certify class action [2−1] (lam) (Entered: 07/01/2002)
28 RESPONSE by plaintiffs to motion to strike Pla's Advisory statement regarding Suicide in El Paso County Jail [22−1] [24−1] (lam) (Entered: 07/05/2002)
29 SUPPLEMENTAL Brief by Dfts' Re: order [23−1] dated 6/21/02 Re: Applicability of the Prison Litigation Reform Act to Pla's Motion to Certify Class (erv) (Entered: 07/11/2002)
30 REPLY by defendants to response to motion to dismiss [8−1], motion for summary judgment [8−2] (lam) (Entered: 09/05/2002)
31 MOTION by proposed intervenors Shirlen Mosby, James Vaughan to intervene as plas and for joinder in motion to certify class (lam) (Entered: 07/29/2002)
32 NOTICE of additional authority by plaintiffs relevant to dfts' motion to dismiss [8−1] or for summary judgment [8−2] (lam) (Entered: 07/30/2002)
33 MOTION by Plas' for order to set Scheduling Conf and to Direct the Parties to Confer pursuant to D.C. COLO. LCivR.16.1 (erv) (Entered: 08/08/2002)
34 NOTICE of addl authority by plaintiffs re: motion to dismiss [8−1] or for summary judgment [8−2] (lam) (Entered: 08/15/2002)
35 RESPONSE by defendant in opp to motion to intervene as plas and for joinder in motion to certify class [31−1] (lam) (Entered: 08/15/2002)
36 NOTICE of additional authority by plaintiffs re: dfts' motion to dismiss [8−1] or for summary judgment [8−2] (lam) (Entered: 08/22/2002)
37 REPLY by plaintiffs in support of motion to intervene as plas and for joinder in motion to certify class [31−1] (lam) (Entered: 08/26/2002)
38 RESPONSE by defendants in opp to motion for order to set scheduling conf and to direct parties to confer pursuant to Local Rule 16.1 [33−1] (lam) (Entered: 08/27/2002)
39 ORDER by Judge Richard P. Matsch denying motion for order to set scheduling conf [33−1], there are dispositive mtns pending in this case (cc: all counsel) ; entry date : 9/3/02 (lam) (Entered: 09/03/2002)

Case: 1:02-cv-651 As of: 07/30/2017 09:52 AM MDT 7 of 13

09/04/2002 12/03/2002
12/03/2002
12/03/2002
01/08/2003 01/15/2003
01/15/2003 01/24/2003 02/05/2003 04/07/2003 04/24/2003 05/06/2003 05/16/2003 06/02/2003 06/06/2003 07/29/2003
07/31/2003

40 First SUPPLEMENT by defendants to motion reply [30−1] re: motion to dismiss [8−1], to motion for summary judgment [8−2] (lam) (Entered: 09/05/2002)
41 ORDER by Judge Richard P. Matsch granting motion to strike Pla's Advisory statement regarding Suicide in El County Jail [22−1] [24−1]; the appropriate procedure to refer to addl info which may support the plas' cmp is to include it in responses to the mtn for sum jgm [22−1] (cc: all counsel) ; entry date : 12/5/02 (lam) (Entered: 12/05/2002)
42 ORDER by Judge Richard P. Matsch setting hearing on dfts' motion to dismiss [8−1], or for summary judgment [8−2] and pla's motion to certify class action [2−1], to be considered as a motion for sum jgm, 2:00 1/15/03 (cc: all counsel) ; entry date : 12/5/02 (lam) (Entered: 12/05/2002)
43 ORDER by Judge Richard P. Matsch deeming pla Robilliad's motion for order to withdraw Robillard as named pla and to change case caption [17−1] a motion to to dismiss; that the claims of James Robillard are dismissed and the caption will be changed to remove Robillard as a party pla ( dismissing pla James Robillard ) (cc: all counsel) ; entry date : 12/5/02 (lam) (Entered: 12/05/2002)
44 NOTICE of additional authority by plaintiffs re: dfts' pending motion to dismiss [8−1] or for summary judgment [8−2] (lam) (Entered: 01/09/2003)
45 COURTROOM MINUTES (Motions Hearing and Status Conf) by Judge Richard P. Matsch: plas' brief addressing eighth amendment issues raised by the Court is to be filed by 1/17/03; granting motion to intervene for the limited purpose of determinong class certification [31−1]; taking under advisement on 1/15/03 the motion to dismiss [8−1] or for summary judgment [8−2] and motion to certify class [2−1] in 02−M−651 ; entry date : 1/16/03 Court Reporter: ECR − Kathy Teraskai (lam) (Entered: 01/16/2003)
71 CLASS ACTION Intervenor COMPLAINT , filed by Shirlen Mosby, James Vaughan.(pap, ) (Entered: 01/12/2005)
47 Supplemental BRIEF w/respect to 8th and 14th amendments FILED by plaintiffs re: minutes [45−1] (lam) Modified on 01/27/2003 (Entered: 01/27/2003)
48 NOTICE of correction by defendant El Paso Cty Bd Commr, defendant John Wesley Anderson regarding oral argument on 1/15/03 [45−1] (lam) (Entered: 02/06/2003)
49 SUPPLEMENT by defendants to notice of correction [48−1], re: [44−1] (lam) (Entered: 04/08/2003)
50 Second SUPPLEMENT by defendants; as of 4/21/03, the El Pason Cnty Brd of Cnty Commr has hired 2 new mental health professionals to work at the jail re: [49−1], [48−1], [44−1] (lam) (Entered: 04/25/2003)
51 MOTION by plaintiffs to strike supplement to notices [50−1], [49−1] (lam) (Entered: 05/07/2003)
52 RESPONSE by defendants in opp to plas' motion to strike [50−1], [49−1] [51−1] (lam) (Entered: 05/19/2003)
53 REPLY by plaintiffs in support of their motion to strike supplement to notices [50−1], [49−1] [51−1] (pap) (Entered: 06/03/2003)
54 NOTICE of addl authority by plaintiffs re: plas' motion to certify class action [2−1] and dfts' motion to dismiss [8−1], or for summary judgment [8−2] (lam) (Entered: 06/09/2003)
55 ORDER by Judge Richard P. Matsch that plas' and intervenors' motion for class certification is denied [2−1]; the dfts' motion to dismiss [8−1] or for summary judgment [8−2] is denied and the plas and intervenors have 30 days to file an amended complaint for individual remedies (cc: all counsel) ; entry date : 7/31/03 (lam) (Entered: 07/31/2003)
56 ATTORNEY APPEARANCE for dfts El Paso Cty Bd Commr, John Wesley Anderson (Terry Maketa), in official capacity as Sheriff of El Paso Cnty by Jay Allen Lauer (lam) (Entered: 07/31/2003)

Case: 1:02-cv-651 As of: 07/30/2017 09:52 AM MDT 8 of 13

08/21/2003 08/22/2003
09/05/2003
09/05/2003 09/12/2003 09/15/2003 09/15/2003 09/16/2003 09/30/2003 09/30/2003
10/02/2003 10/03/2003 12/02/2003 12/05/2003 12/16/2004
12/28/2004 01/04/2005

57 Election (STATEMENT) by plaintiffs and intervnors not to file amended complaint re: order [55−1] (lam) (Entered: 08/22/2003)
58 ORDER by Judge Richard P. Matsch that the plas and invervenors have now conceded that their claism for declaratory and injunctive relief are moot because they are no longer in the El Paso Cnty Jail Facilities and apparently do not want to amd their pleadings to seek damages; action is now dismissed (cc: all counsel) ; entry date : 8/26/03 (lam) (Entered: 08/26/2003)
59 NOTICE OF APPEAL by plaintiffs Mark Shook and Dennis Jones and involuntary−plaintiffs Shirlen Mosby and James Vaughan re: order filed 7/29/03 [55−1] and order filed 8/22/03 [58−2]; Notice of transcript order form due 9/15/03; Notice mailed to all counsel on 9/9/03 (msn) (Entered: 09/09/2003)
$100.00 fee and $5.00 fee paid. Receipt No 246078. re: appeal [59−1] (msn) (Entered: 09/09/2003)
60 NOTIFICATION by Circuit Court of assignment of Case No. [59−1] 03−1397 (msn) (Entered: 09/15/2003)
61 NOTICE OF TRANSCRIPT ORDER FORM filed by plaintiffs/appellants and involuntary−plaintiffs/appellants; TOF filed states...a transcript is not necessary for this appeal; re: appeal [59−1] (msn) (Entered: 09/16/2003)
62 CERTIFICATION by plaintiffs and involuntary−plaintiffs re: transcript. (msn) (Entered: 09/16/2003)
63 LETTER (Re: [59−1]) to USCA and all counsel advising that the record is now complete...a transcript is not necessary for this appeal. (msn) (Entered: 09/16/2003)
64 CERTIFICATE by plaintiffs/appellants Mark Shook and Dennis Jones and involuntary−plaintiffs/appellants Shirlen Mosby, and James Vaughan that appellants have ordered transcript of 1/15/03 requested by appellees (msn) (Entered: 10/02/2003)
65 NOTICE OF TRANSCRIPT ORDER FORM filed by plaintiffs/appellants Mark Shook and Dennis Jones and involuntary−plaintiffs/appellants Shirlen Mosby and James Vaughan; Transcript of hearing 1/15/03 ordered but form not signed by Kathy Terasaki (appellees requested appellants to order this transcript) re: appeal [59−1] (msn) (Entered: 10/02/2003)
66 LETTER (Re: [59−1]) to USCA and all counsel advising that the record is NOT complete. Appellants have filed a TOF ordering the transcript of the 1/15/03 hearing requested by appellees. (msn) (Entered: 10/02/2003)
67 NOTICE OF TRANSCRIPT ORDER FORM filed by Kathy Teraskai; Transcript of 1/15/03 Hearing ordered; re: appeal [59−1]; reporter's transcript due at 12/2/03 (msn) (Entered: 10/06/2003)
68 REPORTER'S TRANSCRIPT of Motion Hearing on 1/15/03 before Judge Matsch (Re: [59−1]); Pgs 1−55 Cert Copy; Prepared By: Kathy Terasaki (msn) Modified on 12/09/2003 (Entered: 12/04/2003)
69 LETTER (Re: [59−1]) to USCA and all counsel advising that the record is now complete...all transcripts ordered for the appeal are now on file as of 12/2/03 (msn) Modified on 12/09/2003 (Entered: 12/05/2003)
70 MANDATE of USCA issued on 12/16/04 as to 59 Notice of Appeal, filed by Dennis Jones,, Mark Shook,, Shirlen Mosby,, James Vaughan. Judgment of of 10/18/04 reversing and remanding the USDC decision for further consideration of the prisoners' complaint. (djs, ) (Entered: 12/17/2004)
72 Unopposed MOTION for Extension of Time to File Answer re 71 Intervenor Complaint, 1 Complaint up to and including1/10/05 by Intervenor Defendants and Defendants.(pap, ) (Entered: 01/12/2005)
73 MINUTE ORDER granting 72 Dfts/Intervenor Dfts' Motion for Extension of Time to Answer John Wesley Anderson answer due 1/10/2005; El Paso County, Board of County Commissioners of El Paso County answer due 1/10/2005; El Paso County, Board of County Commissioners of El Paso County answer due 1/10/2005; John

Case: 1:02-cv-651 As of: 07/30/2017 09:52 AM MDT 9 of 13

01/10/2005 01/10/2005 01/24/2005 01/24/2005 01/24/2005 01/24/2005 02/14/2005 02/14/2005 02/14/2005 02/15/2005
02/22/2005
02/22/2005
02/28/2005
03/09/2005 03/15/2005 04/01/2005

Wesley Anderson answer due 1/10/2005. Entered by Judge Richard P. Matsch on 1/4/05. (pap, ) (Entered: 01/12/2005)
74 ANSWER to Class Action Complaint for Injunctive and Declaratory Relief with Jury Demand by El Paso County, Board of County Commissioners of El Paso County, John Wesley Anderson.(pap, ) (Entered: 01/12/2005)
75 ANSWER and Jury Demand to Class Action Intervenor Complaint by John Wesley Anderson, El Paso County, Board of County Commissioners of El Paso County.(pap, ) (Entered: 01/12/2005)
76 MOTION for Leave to File Supplemental Complaint 1 by Plaintiffs Mark Shook, Dennis Jones. (lam, ) (Entered: 01/28/2005)
77 TENDERED Supplemental Class Action Complaint for Injunctive and Declaratory Relief to 76 MOTION for Leave to file Supplemental Complaint 1 by Plaintiffs Mark Shook, Dennis Jones. (lam, ) (Entered: 01/28/2005)
78 MOTION to Intervene as parties plaintiff and class representatives and MOTION for Joinder in Motion to Certify Class by Thomas Reinig and Lottie Elliott. (lam, ) (Entered: 01/28/2005)
79 TENDERED Class Action Complaint in Intervention re: 78 MOTION to Intervene and MOTION for Joinder by Lottie Elliott, Thomas Reinig. (lam, ) (Entered: 01/28/2005)
80 Opposition (RESPONSE) 78 to MOTION to Intervene filed by Defendants El Paso County, Board of County Commissioners of El Paso County, John Wesley Anderson. (lam, ) (Entered: 02/16/2005)
81 MOTION to Hold in Abeyance (Opposed) or, alternatively, to file Brief in Substitution (Unopposed) by Defendants El Paso County, Board of County Commissioners of El Paso County, John Wesley Anderson. (lam, ) (Entered: 02/16/2005)
82 Opposition (RESPONSE) to 76 Plaintiffs' MOTION for Leave to File Supplemental 1 Complaint filed by Defendants El Paso County, Board of County Commissioners of El Paso County, John Wesley Anderson. (lam, ) (Entered: 02/16/2005)
83 Amended MOTION for Order to Hold in Abeyance matter pending the US Supreme Court's consideration of Defendants' petition for writ of certiorari (Opposed) or, Altenatively, MOTION to Set Briefing Schedule re: issue of class certification (Unopposed) by Defendants El Paso County, Board of County Commissioners of El Paso County, John Wesley Anderson. (lam, ) (Entered: 02/17/2005)
84 REPLY Memorandum in Support of Plas' 76 MOTION for Leave to File Supplemental 1 Complaint and 78 MOTION for Leave to Intervene and MOTION for Joinder in Motion to Certify Class, filed by Plaintiffs Mark Shook, Dennis Jones and proposed pla intervenors. (gms, ) (Entered: 02/22/2005)
85 RESPONSE in Opposition to Dfts' Amended 83 MOTION to Hold in Abeyance and in Response to Motion to Set Briefing Schedule filed by Plaintiffs Mark Shook, Dennis Jones, Intervenor Plaintiffs Shirlen Mosby, James Vaughan. (gms, ) (Entered: 02/23/2005)
86 REPLY in support of 83 Amended MOTION for Order to Hold in Abeyance matter pending the US Supreme Court's consideration of Defendants' petition for writ of certiorari (Opposed) or, Altenatively, MOTION to Set Briefing Schedule re: issue of class certification (Unopposed) by Defendants El Paso County, Board of County Commissioners of El Paso County, John Wesley Anderson (dlb, ) (Entered: 03/01/2005)
87 NOTICE of Change of Address of David C. Fathi by Thomas S. Nichols (gms, ) (Entered: 03/10/2005)
88 Letter from 10CCA regarding writ of certiorari re 59 Notice of Appeal assigned Supreme Court No. 04−1200. ( Appeal No. 04−1397) (djs, ) (Entered: 03/16/2005)
89 ORDER granting 76 Plas' Motion to Supplement Class Action Complaint, granting 78 Thomas Reinig's and Lottie Elliott's Motion to Intervene and 78 Motion for Joinder. Denying 83 Dfts' Motion to hold in abeyance and 83 Motion to Stay. Dfts shall have to

Case: 1:02-cv-651 As of: 07/30/2017 09:52 AM MDT 10 of 13

04/01/2005 04/01/2005 05/06/2005 05/27/2005 05/27/2005 06/17/2005 07/25/2005
07/28/2005 07/28/2005 08/19/2005 10/19/2005
10/25/2005 02/27/2006 03/06/2006

and including 5/27/05 to plead to the supplement. Plas and Intv's shall file a new motion for class certification and dfts shall respond to the motion on or before 7/25/05, plas and intervenors may reply on or before 8/9/05. Signed by Judge Richard P. Matsch on 4/1/05. (pap, ) (Entered: 04/05/2005)
90 SUPPLEMENTAL CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF against Terry Maketa, El Paso County, Board of County Commissioners of El Paso County , filed by Mark Shook, Dennis Jones.(pap, ) (Entered: 04/05/2005)
91 CLASS ACTION COMPLAINT IN INTERVENTION against Intervenor Defendants The Board of County Commissioners of the County of El Paso and Terry Maketa, filed by Lottie Elliott, Thomas Reinig.(pap, ) (Entered: 04/05/2005)
92 Letter from 10CCA regarding writ of certiorari was denied on 4/18/05 re 59 Notice of Appeal. (Appeal No. 03−1397) (djs, ) (Entered: 05/09/2005)
93 ANSWER to Class Action Intervenor Complaint by El Paso County, Board of County Commissioners of El Paso County, Terry Maketa.(lam, ) (Entered: 05/31/2005)
94 ANSWER to Supplemental Class Action Complaint for Injunctive and Declaratory Relief by Defendants Terry Maketa, El Paso County, Board of County Commissioners of El Paso County.(lam, ) (Entered: 05/31/2005)
95 MOTION to Certify Class and Supporting Authorities by Plaintiffs Mark Shook, Dennis Jones, Intervenor Plaintiffs Lottie Elliott, Thomas Reinig, Shirlen Mosby, James Vaughan. (lam, ) (Entered: 06/17/2005)
96 RESPONSE to Motion re 95 MOTION to Certify Class filed by Intervenor Defendants El Paso County, Board of County Commissioners of El Paso County, El Paso County, Board of County Commissioners of El Paso County, Terry Maketa, Defendants Terry Maketa, El Paso County, Board of County Commissioners of El Paso County. (Vaughan, Gordon) (Entered: 07/25/2005)
97 Unopposed MOTION for Extension of Time to File Response/Reply Brief in Support of Motion for Class Certification by Plaintiffs Mark Shook, Dennis Jones, Intervenor Plaintiffs Lottie Elliott, Thomas Reinig, Shirlen Mosby, James Vaughan. (Nichols, Thomas) (Entered: 07/28/2005)
98 MINUTE ORDER granting unopposed 97 Motion for Extension of Time to File Reply Brief in Support of 95 MOTION to Certify Class, filed by Plaintiffs, to 8/19/05, by Judge Richard P. Matsch on 7/28/05. (lam, ) (Entered: 07/28/2005)
99 REPLY to Response to Motion re 95 MOTION to Certify Class filed by Plaintiffs Mark Shook, Dennis Jones, Intervenor Plaintiffs Lottie Elliott, Thomas Reinig, Shirlen Mosby, James Vaughan. (Attachments: # 1 Declaration of Terry A. Kupers# 2 Declaration of Thomas S. Nichols)(Nichols, Thomas) (Entered: 08/19/2005)
100 SUPPLEMENT/AMENDMENT SUPPLEMENTAL AUTHORITY IN SUPPORT OF MOTION FOR CLASS CERTIFICATION 95 by Plaintiffs Mark Shook, Dennis Jones, Intervenor Plaintiffs Lottie Elliott, Thomas Reinig, Shirlen Mosby, James Vaughan. (Nichols, Thomas) (Modified on 10/25/2005 to create linkage)(gms, ). (Entered: 10/19/2005)
101 Docket Annotation re: 100 Supplement/Amendment. This docket entry was modified to create a linkage to Doc #95. Text only entry − no document attached. (gms, ) (Entered: 10/25/2005)
102 MOTION for Hearing/Conference RE SCHEDULING by Plaintiffs Mark Shook, Dennis Jones, Intervenor Plaintiffs Lottie Elliott, Thomas Reinig, Shirlen Mosby, James Vaughan. (Nichols, Thomas) (Entered: 02/27/2006)
103 RESPONSE to Motion re 102 MOTION for Hearing/Conference RE SCHEDULING filed by Intervenor Defendants El Paso County, Board of County Commissioners of El Paso County, Terry Maketa, Defendants Terry Maketa, El Paso County, Board of County Commissioners of El Paso County. (Vaughan, Gordon) (Entered: 03/06/2006)

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03/17/2006 03/17/2006 06/28/2006 06/28/2006
06/28/2006
06/30/2006 07/14/2006 07/25/2006 07/26/2006 07/28/2006
07/31/2006
08/14/2006 09/01/2006 09/06/2006

104 REPLY to Response to Motion re 102 MOTION for Hearing/Conference RE SCHEDULING filed by Plaintiffs Mark Shook, Dennis Jones, Intervenor Plaintiffs Lottie Elliott, Thomas Reinig, Shirlen Mosby, James Vaughan. (Nichols, Thomas) (Entered: 03/17/2006)
105 Unopposed MOTION to Intervene by Interested Party Victor Siegrist. (Attachments: # 1 Proposed Document Class Action Complaint in Intervention# 2 Exhibit Exhibits to Class Action Complaint in Intervention)(Nichols, Thomas) (Entered: 03/17/2006)
106 ORDER that 95 Plaintiffs' Motion for Class Certification is denied. Signed by Judge Richard P. Matsch on 6/28/06. (lam, ) (Entered: 06/28/2006)
107 ORDER granting 105 Motion to Intervene by Victor Siegrist and the class action complaint in intervention submitted on 3/17/06 is filed. The Defendants shall plead to the complaint in intervention of Intervenor−Plaintiff Victor Siegrist w/in 20 days from the date of this order. Signed by Judge Richard P. Matsch on 6/28/06. (lam, ) (Entered: 06/28/2006)
108 INTERVENOR COMPLAINT against Invervenor Defendants The Board of County Commissioners of the County of El Paso and Terry Maketa, filed by Intervenor Plaintiff Victor Siegrist. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8# 9 Exhibit 9)(lam, ) (Entered: 06/29/2006)
109 NOTICE OF MOOTNESS OF INDIVIDUAL CLAIMS FOR INJUNCTIVE AND DECLARATORY RELIEF by Plaintiffs Mark Shook, Dennis Jones, Intervenor Plaintiffs Lottie Elliott, Thomas Reinig, Victor Siegrist, Shirlen Mosby, James Vaughan (Nichols, Thomas) (Entered: 06/30/2006)
110 MOTION to Dismiss for Lack of Jurisdiction by Intervenor Defendants El Paso County, Board of County Commissioners of El Paso County, Terry Maketa, Defendants Terry Maketa, El Paso County, Board of County Commissioners of El Paso County. (Vaughan, Gordon) (Entered: 07/14/2006)
111 RESPONSE to Motion re 110 MOTION to Dismiss for Lack of Jurisdiction filed by Plaintiffs Mark Shook, Dennis Jones, Intervenor Plaintiffs Lottie Elliott, Thomas Reinig, Victor Siegrist, Shirlen Mosby, James Vaughan. (Nichols, Thomas) (Entered: 07/25/2006)
112 SUPPLEMENT/AMENDMENT to 111 Response to Motion by Plaintiffs Mark Shook, Dennis Jones, Intervenor Plaintiffs Lottie Elliott, Thomas Reinig, Victor Siegrist, Shirlen Mosby, James Vaughan. (Nichols, Thomas) (Entered: 07/26/2006)
113 Unopposed MOTION to Withdraw 110 MOTION to Dismiss for Lack of Jurisdiction − Portion of Motion Related to Intervenor Plaintiff Siegrist by Intervenor Defendants El Paso County, Board of County Commissioners of El Paso County, Terry Maketa, Defendants Terry Maketa, El Paso County, Board of County Commissioners of El Paso County. (Attachments: # 1 Proposed Order (PDF Only))(Vaughan, Gordon) (Entered: 07/28/2006)
114 ORDER granting Defendants' 113 Unopposed Motion to Withdraw Portion of Motion to Dismiss 110 . Defendants' motion to dismiss is withdrawn as to Intervenor Plaintiff Victor Siegrist, and Defendants shall have up to and including 8/14/06 to file an answer to Intervor Plaintiff Siegrist's intervention complaint. Signed by Judge Richard P. Matsch on 7/31/06. (lam, ) (Entered: 07/31/2006)
115 ANSWER to Intervenor Complaint by El Paso County, Board of County Commissioners of El Paso County, Terry Maketa, Terry Maketa, El Paso County, Board of County Commissioners of El Paso County.(Vaughan, Gordon) (Entered: 08/14/2006)
116 ORDER Setting Scheduling Conference for 10/20/2006 02:30 PM in Conference Room before Judge Richard P. Matsch. Signed by Judge Richard P. Matsch on 9/1/06. (lam, ) (Entered: 09/01/2006)
117 MINUTE ORDER : Scheduling Conference reset for 10/27/2006 02:30 PM in Conference Room before Judge Richard P. Matsch, by Judge Richard P. Matsch on 9/6/06. (gms, ) (Entered: 09/06/2006)

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09/22/2006
09/22/2006
09/22/2006 09/22/2006 10/18/2006 10/19/2006 10/19/2006 10/20/2006 10/30/2006 10/31/2006 10/11/2007 10/16/2007 10/16/2007 08/29/2008
10/03/2008

118 Joint MOTION for Ruling on 110 MOTION to Dismiss for Lack of Jurisdiction by Plaintiffs Mark Shook, Dennis Jones, Intervenor Defendants El Paso County, Board of County Commissioners of El Paso County, Terry Maketa, Intervenor Plaintiffs Lottie Elliott, Thomas Reinig, Shirlen Mosby, James Vaughan, Defendants Terry Maketa, El Paso County, Board of County Commissioners of El Paso County. (Nichols, Thomas) (Entered: 09/22/2006)
119 STIPULATION of Dismissal of Party Victor Siegrist by Plaintiffs Mark Shook, Dennis Jones, Intervenor Defendants El Paso County, Board of County Commissioners of El Paso County, Terry Maketa, Intervenor Plaintiffs Lottie Elliott, Thomas Reinig, Victor Siegrist, Shirlen Mosby, James Vaughan, Defendants Terry Maketa, El Paso County, Board of County Commissioners of El Paso County. (Nichols, Thomas) (Entered: 09/22/2006)
120 ORDER of Dismissal of Intervenor−Plaintiff Victor Siegrist without prejudice, each party to bear own costs 118 . Signed by Judge Richard P. Matsch on 9/22/06.(lam, ) (Entered: 09/22/2006)
121 ORDER OF DISMISSAL that the motion to dismiss for lack of jurisdiction is granted and this action is dismissed. Signed by Judge Richard P. Matsch on 9/22/06. (lam, ) (Entered: 09/22/2006)
122 NOTICE OF APPEAL as to 106 Order denying Class Certification and 121 Order of Dismissal by Plaintiffs Mark Shook, Dennis Jones, Intervenor Plaintiffs Lottie Elliott, Thomas Reinig, Shirlen Mosby, James Vaughan (Nichols, Thomas) Modified on 10/19/2006 to create links to orders being appealed (bjr2, ). (Entered: 10/18/2006)
123 LETTER re Appeal to all counsel advising of the transmittal of the 122 Notice of Appeal filed by plaintiffs to the U.S. Court of Appeals. (Retained counsel, Fees paid) (Attachments: # 1 Notice of Appeal# 2 Docket Sheet# 3 Receipt)(bjr2, ) (Entered: 10/19/2006)
124 Docket Annotation re: 122 Notice of Appeal as to 106 and 121 , Modified on 10/19/06 to create links to orders being appealed. Text only entry − no document attached. (bjr2, ) (Entered: 10/19/2006)
125 USCA Case Number 06−1454 for 122 Notice of Appeal, filed by Mark Shook, Dennis Jones, Shirlen Mosby, Lottie Elliott, Thomas Reinig, James Vaughan. (bjr2, ) (Entered: 10/23/2006)
126 TRANSCRIPT ORDER FORM re 122 Notice of Appeal, by Plaintiffs Mark Shook, James Robillard, Dennis Jones (Johnson, Thomas) (Entered: 10/30/2006)
127 LETTER TO USCA and all counsel certifying the record is complete as to 122 Notice of Appeal, filed by Mark Shook, Dennis Jones, Shirlen Mosby, Lottie Elliott, Thomas Reinig, James Vaughan. ( Appeal No. 06−1454) (bjr2, ) (Entered: 10/31/2006)
128 NOTICE of Entry of Appearance by Andrew Coleman Gorgey on behalf of El Paso County, Board of County Commissioners of El Paso County, Terry Maketa (Gorgey, Andrew) (Entered: 10/11/2007)
129 MOTION to Withdraw as Attorney by Intervenor Defendants El Paso County, Board of County Commissioners of El Paso County, Terry Maketa, Defendants Terry Maketa, El Paso County, Board of County Commissioners of El Paso County. (Attachments: # 1 Proposed Order (PDF Only))(Lauer, Jay) (Entered: 10/16/2007)
130 ORDER granting 129 Motion to Withdraw as Attorney. Attorney Jay Allen Lauer terminated. Signed by Judge Richard P. Matsch on 10/16/07.(jjhsl, ) (Entered: 10/16/2007)
131 USCA Opinion and Judgment as to 122 Notice of Appeal, filed by Mark Shook, Dennis Jones, Shirlen Mosby, Lottie Elliott, Thomas Reinig, James Vaughan : The judgment of the district court is affirmed. (USCA Case No. 06−1454) (This document is not the Mandate) (Attachments: # 1 USCA Judgment, # 2 Letter)(bjrsl, ) (Entered: 08/29/2008)
132 MANDATE of USCA as to 122 Notice of Appeal, filed by Mark Shook, Dennis Jones, Shirlen Mosby, Lottie Elliott, Thomas Reinig, James Vaughan, 131 USCA Opinion/Judgment: Affirmed. (USCA Case No. 06−1454) (bjrsl, ) (Entered:

Case: 1:02-cv-651 As of: 07/30/2017 09:52 AM MDT 13 of 13 10/03/2008)