CASE−CLOSED,CASE−MANAGER−BROWN,CASE−REFERRED,PROTECTIVE−ORDER
U.S. District Court Middle District of Tennessee (Nashville) CIVIL DOCKET FOR CASE #: 3:13−cv−00869

Cedillo et al v. Transcor America LLC Assigned to: Judge Kevin H. Sharp Referred to: Magistrate Judge Joe Brown Case in other court: Sixth Circuit, 15−06168 Cause: 42:1983 Civil Rights Act
Plaintiff
Ruben Cedillo on behalf of himself and all those similarly situated

Date Filed: 08/29/2013 Date Terminated: 03/14/2017 Jury Demand: Defendant Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Andrew Charles Schwartz Casper Meadows Schwartz & Cook 2121 N California Boulevard Suite 1020 Walnut Creek, CA 94596 (925) 947−1147 Fax: (925) 947−1131 Email: schwartz@cmslaw.com ATTORNEY TO BE NOTICED

Douglas S. Johnston , Jr. Barrett Johnston Martin & Garrison, LLC Bank of America Plaza 414 Union Street Suite 900 Nashville, TN 37219 (615) 244−2202 Fax: (615) 252−3798 Email: djohnston@barrettjohnston.com ATTORNEY TO BE NOTICED

Karen Leigh Snell Attorney at Law 102 Buena Vista Terrace San Francisco, CA 94117 (415) 225−7592 Fax: (415) 487−0748 Email: ksnell@snell−law.com ATTORNEY TO BE NOTICED

Mark E. Merin Law Office of Mark E. Merin 1010 F Street Suite 300 Sacramento, CA 95814 (916) 443−6911 Fax: (916) 447−8336 Email: mark@markmerin.com ATTORNEY TO BE NOTICED

Plaintiff
Terry Houston on behalf of himself and all those similarly situated

represented by Andrew Charles Schwartz (See above for address) ATTORNEY TO BE NOTICED

Karen Leigh Snell (See above for address) ATTORNEY TO BE NOTICED

Mark E. Merin Case: 3:13-cv-869 As of: 10/19/2018 10:43 AM CDT 1 of 12

(See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Justin Wright on behalf of himself and all those similarly situated

represented by Andrew Charles Schwartz (See above for address) ATTORNEY TO BE NOTICED

Karen Leigh Snell (See above for address) ATTORNEY TO BE NOTICED

Mark E. Merin (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Craig Arno on behalf of himself and all those similarly situated

represented by Andrew Charles Schwartz (See above for address) ATTORNEY TO BE NOTICED

Karen Leigh Snell (See above for address) ATTORNEY TO BE NOTICED

Mark E. Merin (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Alonzo Cleaves on behalf of himself and all those similarly situated

represented by Andrew Charles Schwartz (See above for address) ATTORNEY TO BE NOTICED

Karen Leigh Snell (See above for address) ATTORNEY TO BE NOTICED

Mark E. Merin (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
John Greenemeier on behalf of himself and all those similarly situated

represented by Andrew Charles Schwartz (See above for address) ATTORNEY TO BE NOTICED

Karen Leigh Snell (See above for address) ATTORNEY TO BE NOTICED

Mark E. Merin (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
John Roussel on behalf of himself and all those similarly situated

represented by Andrew Charles Schwartz (See above for address) ATTORNEY TO BE NOTICED

Karen Leigh Snell (See above for address)
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Plaintiff
Leonard Hugall on behalf of himself and all those similarly situated

ATTORNEY TO BE NOTICED
Mark E. Merin (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Charles Schwartz (See above for address) ATTORNEY TO BE NOTICED
Karen Leigh Snell (See above for address) ATTORNEY TO BE NOTICED
Mark E. Merin (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Transcor America, LLC

represented by Amy L. Nguyen Struck Wieneke & Love PLC 3100 W Ray Road Suite 300 Chandler, AZ 85226 (480) 420−1600 Fax: (480) 420−1696 Email: anguyen@swlfirm.com ATTORNEY TO BE NOTICED

Daniel P. Struck Struck Wieneke & Love PLC 3100 W Ray Road Suite 300 Chandler, AZ 85226 (480) 420−1600 Fax: (480) 336−2893 Email: dstruck@strucklove.com ATTORNEY TO BE NOTICED

David C. Lewis 3100 W Ray Road Suite 300 Chandler, AZ 85226 (480) 420−1600 Fax: (480) 336−2893 Email: dlewis@swlfirm.com ATTORNEY TO BE NOTICED

Erin Palmer Polly Butler Snow LLP (Nashville) The Pinnacle at Symphony Place 150 Third Avenue South Suite 1600 Nashville, TN 37201 (615) 651−6700 Email: Erin.Polly@butlersnow.com ATTORNEY TO BE NOTICED

Gregory Todd Fayard Klinedinst PC
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801 K Street Suite 2100 Sacramento, CA 95814 (916) 444−7573 Fax: (916) 444−7544 Email: gfayard@klinedinstlaw.com ATTORNEY TO BE NOTICED
Jason W. Callen Butler Snow LLP (Nashville) The Pinnacle at Symphony Place 150 Third Avenue South Suite 1600 Nashville, TN 37201 (615) 651−6700 Fax: (615) 651−6701 Email: Jason.Callen@butlersnow.com ATTORNEY TO BE NOTICED
Joseph F. Welborn , III Butler Snow LLP (Nashville) The Pinnacle at Symphony Place 150 Third Avenue South Suite 1600 Nashville, TN 37201 (615) 651−6700 Email: Joe.Welborn@butlersnow.com ATTORNEY TO BE NOTICED
Lauren Patten Butler Snow LLP (Nashville) The Pinnacle at Symphony Place 150 Third Avenue South Suite 1600 Nashville, TN 37201 (615) 651−6700 Email: Lauren.Patten@butlersnow.com ATTORNEY TO BE NOTICED
Natalie P. Vance Klinedinst PC 801 K Street Suite 2100 Sacramento, CA 95814 (916) 444−7573 Fax: (916) 444−7544 Email: nvance@klinedinstlaw.com ATTORNEY TO BE NOTICED

Date Filed 04/08/2013
04/08/2013 04/24/2013

# Docket Text
1 COMPLAINT against Transcor America, LLC (Filing fee $350, receipt number 34611084925). Filed byJohn Roussel, John Greenemeier, Justin Wright, Alonzo Cleaves, Ruben Cedillo, Craig Arno, Leonard Hugall, Terry Houston. (Attachments: # 1 Civil Cover Sheet)(kc, COURT STAFF) (Filed on 4/8/2013) [Transferred from California Northern on 8/29/2013.] (Entered: 04/10/2013)
2 Summons Issued as to Transcor America, LLC. (kc, COURT STAFF) (Filed on 4/8/2013) [Transferred from California Northern on 8/29/2013.] (Entered: 04/10/2013)
3 Ex Parte Application /Administrative Motion to Reclassify Case filed by Craig Arno, Ruben Cedillo, Alonzo Cleaves, John Greenemeier, Terry Houston, Leonard Hugall, John Roussel, Justin Wright. (Attachments: # 1 Civil Cover Sheet AMENDED Civil Cover Sheet, # 2 Proposed Order)(Schwartz, Andrew) (Filed on 4/24/2013)

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04/30/2013 05/09/2013 05/24/2013 05/24/2013 05/29/2013 05/29/2013 06/03/2013 06/26/2013 06/27/2013 06/28/2013 06/28/2013 06/28/2013 06/28/2013
07/02/2013

[Transferred from California Northern on 8/29/2013.] (Entered: 04/24/2013)
4 ORDER by Judge Yvonne Gonzalez Rogers granting 3 Ex Parte Application to reclassify action as a "(440)Other Civil Rights" case as reflected on Plaintiff's Amended Civil Case Coversheet. (fs, COURT STAFF) (Filed on 4/30/2013) [Transferred from California Northern on 8/29/2013.] (Entered: 04/30/2013)
5 WAIVER OF SERVICE Returned Executed filed by Ruben Cedillo. Service waived by All Defendants. (Schwartz, Andrew) (Filed on 5/9/2013) [Transferred from California Northern on 8/29/2013.] (Entered: 05/09/2013)
6 ORDER RELATING CASE(s): C−08−0941 SI Schilling vs Transcor America LLC et al and C−13−1580 YGR Cedillo et al vs Transcor America LLC. Signed by Judge Susan Illston on 5/21/13. (tlS, COURT STAFF) (Filed on 5/24/2013) [Transferred from California Northern on 8/29/2013.] (Entered: 05/24/2013)
Case reassigned to Judge Hon. Susan Illston. Judge Hon. Yvonne Gonzalez Rogers no longer assigned to the case. (cpS, COURT STAFF) (Filed on 5/24/2013) [Transferred from California Northern on 8/29/2013.] (Entered: 05/28/2013)
7 CLERKS NOTICE Initial Case Management Conference set for 8/30/2013 02:30 PM in Courtroom 10, 19th Floor, San Francisco. This is a docket text entry only, there is no document associated with this notice.(tfS, COURT STAFF) (Filed on 5/29/2013) [Transferred from California Northern on 8/29/2013.] (Entered: 05/29/2013)
8 JUDGE ILLSTON'S STANDING ORDER (tfS, COURT STAFF) (Filed on 5/29/2013) [Transferred from California Northern on 8/29/2013.] (Entered: 05/29/2013)
9 CERTIFICATE OF SERVICE by Ruben Cedillo re 8 Order PLAINTIFFS' NOTICE OF SERVICE OF CASE MANAGEMENT CONFERENCE, & CASE MANAGEMENT ORDER (Schwartz, Andrew) (Filed on 6/3/2013) [Transferred from California Northern on 8/29/2013.] (Entered: 06/03/2013)
10 MOTION for leave to appear in Pro Hac Vice of Daniel P. Struck ( Filing fee $ 305, receipt number 0971−7803128.) filed by Transcor America, LLC. (Struck, Daniel) (Filed on 6/26/2013) Modified on 6/27/2013 (ysS, COURT STAFF). [Transferred from California Northern on 8/29/2013.] (Entered: 06/26/2013)
11 ORDER by Judge Susan Illston granting 10 Motion for Pro Hac Vice (tfS, COURT STAFF) (Filed on 6/27/2013) [Transferred from California Northern on 8/29/2013.] (Entered: 06/27/2013)
12 ANSWER to Complaint byTranscor America, LLC. (Vance, Natalie) (Filed on 6/28/2013) [Transferred from California Northern on 8/29/2013.] (Entered: 06/28/2013)
13 DEMAND for Trial by Jury by Transcor America, LLC. (Vance, Natalie) (Filed on 6/28/2013) [Transferred from California Northern on 8/29/2013.] (Entered: 06/28/2013)
14 Certificate of Interested Entities by Transcor America, LLC identifying Other Affiliate CCA of Tennessee, LLC, Other Affiliate Corrections Corporation of America for Transcor America, LLC. (Vance, Natalie) (Filed on 6/28/2013) [Transferred from California Northern on 8/29/2013.] (Entered: 06/28/2013)
15 MOTION to Transfer Case filed by Transcor America, LLC. Motion Hearing set for 8/30/2013 09:00 AM in Courtroom 10, 19th Floor, San Francisco before Hon. Susan Illston. Responses due by 7/12/2013. Replies due by 7/19/2013. (Vance, Natalie) (Filed on 6/28/2013) [Transferred from California Northern on 8/29/2013.] (Entered: 06/28/2013)
16 STIPULATION WITH PROPOSED ORDER re 15 MOTION to Transfer Case RE: extend time for briefing schedule filed by Craig Arno, Ruben Cedillo, Alonzo Cleaves, John Greenemeier, Terry Houston, Leonard Hugall, John Roussel, Justin Wright. (Schwartz, Andrew) (Filed on 7/2/2013) [Transferred from California Northern on 8/29/2013.] (Entered: 07/02/2013)

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07/03/2013
07/03/2013 07/31/2013
08/09/2013 08/09/2013 08/13/2013 08/13/2013
08/16/2013 08/27/2013 08/28/2013 08/29/2013 09/04/2013 09/04/2013

17 ORDER by Judge Susan Illston granting 16 Stipulation Pursuant to Civil Local Rules 6−2 and 7−12, the parties to the above−entitled actionhereby stipulate to extend the time for filing Plaintiffs Opposition to Defendant TransCorAmerica, LLCs Motion to Transfer Venue to July 31, 2013, and to extend the time for filingDefendant TransCor America, LLCs Reply in Support of Motion to Transfer Venue to August16, 2013. (tfS, COURT STAFF) (Filed on 7/3/2013) [Transferred from California Northern on 8/29/2013.] (Entered: 07/03/2013)
Set/Reset Deadlines as to 15 MOTION to Transfer Case . Responses due by 7/31/2013. Replies due by 8/16/2013. (ysS, COURT STAFF) (Filed on 7/3/2013) [Transferred from California Northern on 8/29/2013.] (Entered: 07/08/2013)
18 RESPONSE (re 15 MOTION to Transfer Case ) filed byCraig Arno, Ruben Cedillo, Alonzo Cleaves, John Greenemeier, Terry Houston, Leonard Hugall, John Roussel, Justin Wright. (Attachments: # 1 Declaration [of] Karen Snell, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K)(Schwartz, Andrew) (Filed on 7/31/2013) [Transferred from California Northern on 8/29/2013.] (Entered: 07/31/2013)
19 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 305, receipt number 0971−7914348.) filed by Transcor America, LLC. (Lewis, David) (Filed on 8/9/2013) [Transferred from California Northern on 8/29/2013.] (Entered: 08/09/2013)
20 STIPULATION WITH PROPOSED ORDER re 7 Clerks Notice (to Continue Case Management Conference set for August 30, 2013) filed by Transcor America, LLC. (Struck, Daniel) (Filed on 8/9/2013) [Transferred from California Northern on 8/29/2013.] (Entered: 08/09/2013)
21 ORDER by Judge Susan Illston granting 19 Motion for Pro Hac Vice (tfS, COURT STAFF) (Filed on 8/13/2013) [Transferred from California Northern on 8/29/2013.] (Entered: 08/13/2013)
22 ORDER: Initial Case Management Conference set for 8/30/13 is continued to 10/11/2013 02:30 PM in Courtroom 10, 19th Floor, San Francisco.. Signed by Judge Susan Illston on 8/13/13., Motions terminated: 20 STIPULATION WITH PROPOSED ORDER re 7 Clerks Notice (to Continue Case Management Conference set for August 30, 2013) filed by Transcor America, LLC. (tfS, COURT STAFF) (Filed on 8/13/2013) [Transferred from California Northern on 8/29/2013.] (Entered: 08/13/2013)
23 REPLY (re 15 MOTION to Transfer Case ) filed byTranscor America, LLC. (Attachments: # 1 Exhibit A − 2nd Affidavit of James Crouch)(Struck, Daniel) (Filed on 8/16/2013) [Transferred from California Northern on 8/29/2013.] (Entered: 08/16/2013)
24 ORDER GRANTING DEFENDANT'S MOTION TO TRANSFER VENUE to the Middle District of Tennessee re 15 . (Illston, Susan) (Filed on 8/27/2013) Modified on 8/28/2013 (ysS, COURT STAFF). [Transferred from California Northern on 8/29/2013.] (Entered: 08/27/2013)
This action is e−transferred to USDC for the Middle District of Tennessee. (ysS, COURT STAFF) (Filed on 8/28/2013) [Transferred from California Northern on 8/29/2013.] (Entered: 08/28/2013)
25 Case transferred in from the District of California Northern; Case Number 3:13−cv−01580. Original file certified copy of transfer order and docket sheet received. (Entered: 08/29/2013)
26 NOTICE of Initial Case Management Conference set for 10/28/2013 at 11:00 AM in Courtroom 783 before Magistrate Judge Joe Brown. (afs) (Main Document 26 replaced on 9/4/2013) (afs). (Entered: 09/04/2013)
BAR STATUS for Attorneys, Andrew Charles Schwartz, Karen Leigh Snell, Mark E. Merin, Natalie P. Vance, Gregory Todd Fayard, of CA and Daniel P. Struck and David C. Lewis of AZ, verified as active on this date. (afs) (Entered: 09/04/2013)

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09/04/2013

NOTICE TO COUNSEL, Andrew Charles Schwartz, Karen Leigh Snell, Mark E. Merin, Daniel P. Struck Natalie P. Vance, David C. Lewis and Gregory Todd Fayard WITHIN 20 DAYS, September 18, 2013, Counsel shall associate local counsel qualified to practice in the United States District Court for the Middle District of Tennessee. Local counsel shall electronically file a Notice of Appearance ***AND*** WITHIN 20 DAYS, September 18, 2013, Andrew Charles Schwartz, Karen Leigh Snell, Mark E. Merin, Daniel P. Struck Natalie P. Vance, David C. Lewis and Gregory Todd Fayard shall file a Motion to Appear Pro Hac Vice, a Certificate of Good Standing signed by the Clerk of a United States District Court where admitted, and pay a fee of $75.00. (see LR 83.01(h) & (d)). (afs) (Entered: 09/04/2013)

09/04/2013

27 ORDER: This case has recently been transferred to this district from the Northern District of California (Docket Entry 25 ). This matter is RESET for a case management conference for Wednesday,September 25, 2013, at 1:30 p.m in Courtroom 783 before Magistrate Judge Joe Brown. Signed by Magistrate Judge Joe Brown on 9/4/13. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(la) (Entered: 09/05/2013)

09/06/2013 28 NOTICE of Appearance by Douglas S. Johnston, Jr on behalf of Ruben Cedillo (Johnston, Douglas) (Entered: 09/06/2013)

09/09/2013

BAR Status for attorney Douglas S. Johnston, Jr., of TN verified as active this date. (la) (Entered: 09/09/2013)

09/10/2013 29 NOTICE of Appearance by Joseph F. Welborn, III on behalf of Transcor America, LLC (Welborn, Joseph) (Entered: 09/10/2013)

09/10/2013

30 MOTION for attorney(s) David C. Lewis to Appear Pro Hac Vice (Fee not paid−due within 20 days) by Transcor America, LLC. (Attachments: # 1 Attachment Certificate of Good Standing)(Welborn, Joseph) (Entered: 09/10/2013)

09/10/2013

31 MOTION for attorney(s) Daniel P. Struck to Appear Pro Hac Vice (Fee not paid−due within 20 days) by Transcor America, LLC. (Attachments: # 1 Attachment Certificate of Good Standing)(Welborn, Joseph) (Entered: 09/10/2013)

09/11/2013

32 CERTIFICATE of Service filed by Transcor America, LLC re 30 MOTION for attorney(s) David C. Lewis to Appear Pro Hac Vice (Fee not paid−due within 20 days) filed by Transcor America, LLC, 31 MOTION for attorney(s) Daniel P. Struck to Appear Pro Hac Vice (Fee not paid−due within 20 days) filed by Transcor America, LLC. (Welborn, Joseph) (Entered: 09/11/2013)

09/11/2013

BAR Status for attorneys David Conley Lewis and Daniel Patrick Struck of AZ, and Joseph F. Welborn, III of TN verified as active this date. (la) (Entered: 09/11/2013)

09/12/2013 33 MOTION for attorney(s) Daniel P. Struck to Appear Pro Hac Vice (Fee paid) by Transcor America, LLC. (la) (Entered: 09/13/2013)

09/12/2013 34 CERTIFICATE OF GOOD STANDING of Attorney Daniel Patrick Struck from the Supreme Court of Arizona filed by Transcor America, LLC. (la) (Entered: 09/13/2013)

09/12/2013 35 MOTION for attorney David C. Lewis to Appear Pro Hac Vice (Fee paid) by Transcor America, LLC. (la) (Entered: 09/13/2013)

09/12/2013 36 CERTIFICATE OF GOOD STANDING of Attorney Daniel Conley Lewis from the Supreme Court of Arizona filed by Transcor America, LLC. (la) (Entered: 09/13/2013)

09/12/2013

38 RECEIPT #34675028253 in the amount of $150 posted by Transcor America, LLC re 35 David L. Lewis' Motion to Appear Pro Hac Vice, and 33 Daniel P. Struck's Motion to Appear Pro Hac Vice. (la) (Entered: 09/16/2013)

09/13/2013

Note to Filer re DE# 33 and 35 : Pursuant to Local Rule 5.01, Certificates of Service shall identify by name the person served, what was served, the method of service, and date of service. Please FILE a conformed Certificate of Service for this document. (la) (Entered: 09/13/2013)

09/13/2013

37 CERTIFICATE of Service filed by Transcor America, LLC re 35 MOTION for attorney(s) David C. Lewis to Appear Pro Hac Vice (Fee not paid−due within 20 days) filed by Transcor America, LLC, 33 MOTION for attorney(s) Daniel P. Struck to Appear Pro Hac Vice (Fee not paid−due within 20 days) filed by Transcor America,

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09/16/2013 09/16/2013 09/16/2013 09/16/2013 09/16/2013 09/16/2013
09/16/2013 09/16/2013
09/16/2013 09/16/2013
09/18/2013 09/18/2013 09/18/2013 09/25/2013 10/08/2013 10/31/2013 10/31/2013

LLC. (Welborn, Joseph) (Entered: 09/13/2013)
39 ORDER finding as moot 30 Motion for to Appear Pro Hac Vice (Brown, Joe) (Entered: 09/16/2013)
40 ORDER finding as moot 31 Motion for to Appear Pro Hac Vice (Brown, Joe) (Entered: 09/16/2013)
41 ORDER granting 33 Motion for Daniel P. Struck to Appear Pro Hac Vice (Brown, Joe) (Entered: 09/16/2013)
42 ORDER granting 35 Motion for David C. Lewis to Appear Pro Hac Vice (Brown, Joe) (Entered: 09/16/2013)
43 MOTION for attorney(s) Mark E. Merin to Appear Pro Hac Vice (Fee paid) by Craig Arno, Ruben Cedillo, Alonzo Cleaves, John Greenemeier, Terry Houston, Leonard Hugall, John Roussel, and Justin Wright. (la) (Entered: 09/17/2013)
44 CERTIFICATE OF GOOD STANDING of Attorney Mark E. Merin from the United States District Court for the Northern District of CA filed by Craig Arno, Ruben Cedillo, Alonzo Cleaves, John Greenemeier, Terry Houston, Leonard Hugall, John Roussel, and Justin Wright. (la) (Entered: 09/17/2013)
45 MOTION for attorney(s) Andrew C. Schwartz to Appear Pro Hac Vice (Fee paid) by Craig Arno, Ruben Cedillo, Alonzo Cleaves, John Greenemeier, Terry Houston, Leonard Hugall, John Roussel, and Justin Wright. (la) (Entered: 09/17/2013)
46 CERTIFICATE OF GOOD STANDING of Attorney Andrew Charles Schwartz from the United States District Court for the Northern District of CA filed by Craig Arno, Ruben Cedillo, Alonzo Cleaves, John Greenemeier, Terry Houston, Leonard Hugall, John Roussel, and Justin Wright. (la) (Entered: 09/17/2013)
47 MOTION for attorney(s) Karen L. Snell to Appear Pro Hac Vice (Fee paid) by Craig Arno, Ruben Cedillo, Alonzo Cleaves, John Greenemeier, Terry Houston, Leonard Hugall, John Roussel, and Justin Wright. (la) (Entered: 09/17/2013)
48 CERTIFICATE OF GOOD STANDING of Attorney Karen L. Snell from the United States District Court of Northern District of CA filed by Craig Arno, Ruben Cedillo, Alonzo Cleaves, John Greenemeier, Terry Houston, Leonard Hugall, John Roussel, and Justin Wright. (la) (Entered: 09/17/2013)
49 ORDER granting 43 Motion for Mark E. Merin to Appear Pro Hac Vice. Signed by Magistrate Judge Joe Brown on 9/18/13. (la) (Entered: 09/18/2013)
50 ORDER granting 45 Motion for Andrew C. Schwartz to Appear Pro Hac Vice. Signed by Magistrate Judge Joe Brown on 9/18/13. (la) (Entered: 09/18/2013)
51 ORDER granting 47 Motion for Karen L. Snell to Appear Pro Hac Vice. Signed by Magistrate Judge Joe Brown on 9/18/13. (la) (Entered: 09/18/2013)
52 Minute Entry for proceedings held before Magistrate Judge Joe Brown: Case Management Conference held on 9/25/2013. ICMO to enter. (Tape: 25sep2013) (rd) (Entered: 09/25/2013)
53 INITIAL CASE MANAGEMENT ORDER Signed by Magistrate Judge Joe Brown on 10/8/13. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 10/09/2013)
54 MOTION for Judgment on the Pleadings by Transcor America, LLC. (Struck, Daniel) (Entered: 10/31/2013)
55 MEMORANDUM in Support of 54 MOTION for Judgment on the Pleadings filed by Transcor America, LLC . (Attachments: # 1 Exhibit Complaint filed in Schilling v. TransCor CV 08−941 in USDC, N.D. CA, # 2 Exhibit Schilling v. TransCor, 2012 WL 2792688 (N.D.Cal. July 9, 2012), # 3 Exhibit Schilling v. TransCor Joint Case Management Plan filed 03/20/2009, # 4 Exhibit Schilling v. TransCor Order Denying Motion for Clarification and Class Decertification dated 07/09/2012, # 5 Exhibit Schilling v. TransCor Agreed Notice of Pendency of Class Action dated 03/12/2010, # 6 Exhibit Schilling v. TransCor − Order granting Defendants' Motion for Partial

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11/13/2013 11/15/2013 11/26/2013 11/27/2013 12/03/2013
12/10/2013

Summary Judgment dated 08/08/2012, # 7 Exhibit Schilling v. TransCor − Plaintiff's Motion to Amend Class Certification dated 09/04/2012, # 8 Exhibit Schilling v. TransCor − Order on Plaintiff's Motion to Amend dated 10/11/2012, # 9 Exhibit Schilling v. TransCor − Order Approving Plan to Provide Class Notice dated 12/12/2012, # 10 Exhibit Schilling v. TransCor − Defendants' Notice of Intent to Argue Resumption of Statute of Limitations on August 8, 2012 for Future Claims dated 11/02/2012, # 11 Exhibit PLN Article Jan. 2013, # 12 Exhibit Schilling v. TransCor − Civil Minutes of Settlement Conference held 01/10/2013, # 13 Exhibit Schilling v. TransCor Order of Dismissal Upon Settlement filed 01/31/2013, # 14 Exhibit Schilling v. TransCor Stipulated Request for Amendment of Order of Dismissal Upon Settlement filed 04/04/2013, # 15 Attachment WL Case: Madani v. Shell Oil Co., # 16 Attachment WL Case: Myers v. TransCor America, # 17 Attachment WL Case: Waller v. TransCor America, # 18 Attachment WL Case: Zanzucchi v. Wynberg, # 19 Attachment WL Case: Juliano v. Camden County Department of Corrections, # 20 Attachment WL Case: Jensen v. Jorgenson, # 21 Attachment WL Case: Pratt v. Grayhound Lines, Inc.)(Struck, Daniel) (Entered: 10/31/2013)
56 NOTICE by Transcor America, LLC regarding service of Transcor's Responses to Plaintiffs' First Set of Requests for Production (Struck, Daniel) (Entered: 11/13/2013)
Bar status for attorneys Erin Palmer Polly and Lauren Patten Coble of TN verified as active this date.(dt) (Entered: 11/15/2013)
57 RESPONSE in Opposition re 54 MOTION for Judgment on the Pleadings filed by Craig Arno, Ruben Cedillo, Alonzo Cleaves, John Greenemeier, Terry Houston, Leonard Hugall, John Roussel, Justin Wright. (Attachments: # 1 Attachment Declaration of Andrew C. Schwartz, # 2 Exhibit Exh. A, # 3 Exhibit Exh. B, # 4 Exhibit Exh. C, # 5 Exhibit Exh. D, # 6 Exhibit Exh. E, # 7 Exhibit Exh. F, # 8 Exhibit Exh. G, # 9 Exhibit Exh. H, # 10 Exhibit Exh. I, # 11 Exhibit Exh. J, # 12 Exhibit Exh. K, # 13 Exhibit Exh. L, # 14 Exhibit Exh. M, # 15 Exhibit Exh. N, # 16 Exhibit Exh. O, # 17 Exhibit Exh. P, # 18 Exhibit Exh. Q, # 19 Exhibit Exh. R, # 20 Exhibit Exh. S)(Schwartz, Andrew) (Entered: 11/26/2013)
Docket Annotation: At DE# 57, counsel failed to include the mandatory description of the attached exhibits. The exhibits shall be RESUBMITTED by filing a Notice of Filing and attaching the exhibits with the mandatory brief description. (EXAMPLE: Attachments: # 1 Exhibit 1 Police Report dated 1/1/06, # 2 Exhibit 2 Unreported Case Smith v. Jones). (dt) (Entered: 11/27/2013)
58 NOTICE of Filing by Craig Arno, Ruben Cedillo, Alonzo Cleaves, John Greenemeier, Terry Houston, Leonard Hugall, John Roussel, Justin Wright re 57 Response in Opposition to Motion,, RESUBMITTING EXHIBITS A−S WITH REQUIRED DESCRIPTION (Attachments: # 1 Exhibit A: Unreported case of Schilling v. TransCor, # 2 Exhibit B: Transcor's response to Plaintiff's Motion to Amend Class Certification Order Re Schilling v. TransCor, # 3 Exhibit C: First Amended Class Action Complaint Re Schilling v. TransCor, # 4 Exhibit D: TransCor's Response to Motion for Partial MSJ/Cross−Motion for Partial MSJ Re Schilling v TransCor, # 5 Exhibit E: Plaintiff's Motion for Class Cert Re Schilling v TransCor, # 6 Exhibit F: Response & Oppo to Mtn for Class Cert Re Schilling v TransCor, # 7 Exhibit G: 9th Circuit Order Denying Petition to Appeal Re Schilling v Transcor, # 8 Exhibit H: Supreme Court Order Denying Writ of Certiorari re Schilling v. TransCor, # 9 Exhibit I: Defendant's Motion for Clarification & Class Decertification, # 10 Exhibit J: Plaintiffs Schilling Motion for Partial Summary Judgment against TransCor, # 11 Exhibit K: Plaintiffs Schilling Motion to Amend Class Cert Order, # 12 Exhibit L: Civil Minutes 12−3−12 Re Schilling v TransCor, # 13 Exhibit M: Order Approving Plan to Provide Class Notice Re Schilling v TransCor, # 14 Exhibit N: Hayes v General Motors, # 15 Exhibit O: Buefort v County of cook, # 16 Exhibit P: Unreported case of Vestal v Shiley, # 17 Exhibit Q: Unreported case of Aslani v Sparrow Health Systems, # 18 Exhibit R: Unreported case of Barroso v New Jersey Transit, # 19 Exhibit S: Laudman v Padula)(Schwartz, Andrew) (Entered: 12/03/2013)
59 REPLY to Response to Motion re 54 MOTION for Judgment on the Pleadings filed by Transcor America, LLC. (Struck, Daniel) (Entered: 12/10/2013)

Case: 3:13-cv-869 As of: 10/19/2018 10:43 AM CDT 9 of 12

07/08/2014 60 NOTICE of Change of Address by Douglas S. Johnston, Jr (Johnston, Douglas) (Entered: 07/08/2014)

09/16/2015

61 MEMORANDUM OPINION OF THE COURT. Signed by Chief Judge Kevin H. Sharp on 9/16/15. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(afs) (Entered: 09/16/2015)

09/16/2015

62 ORDER: Pending before the Court is Defendant TransCor America, LLC's Motion for Judgment on the Pleadings (Docket No. 54 ) ("Motion"). For the reasons explained in the accompanying Memorandum, the Court GRANTS IN PART and DENIES IN PART Defendant's Motion. Signed by Chief Judge Kevin H. Sharp on 9/16/15. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(afs) (Entered: 09/16/2015)

09/17/2015

63 ORDER: A case management conference with Magistrate Judge Brown to is set for Wednesday, October 14, 2015, at 10:00 a.m., Courtroom 783. Signed by Magistrate Judge Joe Brown on 9/17/15. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(afs) (Entered: 09/17/2015)

09/30/2015

64 ORDER: At the request of counsel, the Case Management Conference currently set on Wednesday, October 14, 2015, is hereby reset for 10:00 a.m. on Thursday, October 22, 2015. Signed by Magistrate Judge Joe Brown on 9/30/15. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(afs) (Entered: 09/30/2015)

10/16/2015

65 NOTICE OF APPEAL as to 61 Memorandum Opinion of the Court, 62 Order on Motion for Judgment on the Pleadings, by Terry Houston. Filing fee $ 505, receipt number 0650−2078650. (Merin, Mark) (Entered: 10/16/2015)

10/19/2015

66 ORDER: Accordingly, the Magistrate Judge will cancel the present case management conference set for October 22nd. The parties are directed to notify the Magistrate Judge on or before January 22, 2015, of the progress of their settlement discussions. Signed by Magistrate Judge Joe Brown on 10/19/15. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(afs) (Entered: 10/20/2015)

10/21/2015

USCA Case Number 15−6168 − Jeanine R. Hance, Case Manager, for 65 Notice of Appeal filed by Terry Houston. (afs) (Entered: 10/21/2015)

11/12/2015

67 MOTION for attorney(s) Amy L. Nguyen to Appear Pro Hac Vice (Fee not paid−due within 20 days) by Transcor America, LLC. (Attachments: # 1 Attachment Certificate of Good Standing)(Welborn, Joseph) (Entered: 11/12/2015)

11/13/2015

BAR STATUS for Attorney, Amy L. Nguyen of AZ, verified as active on this date. (afs) (Entered: 11/13/2015)

11/16/2015 68 RECEIPT #34675038851 in the amount of $75 posted by Transcor America, LLC re 67 Motion to Appear Pro Hac Vice. (afs) (Entered: 11/17/2015)

11/18/2015 69 ORDER granting 67 Motion for Amy L. Nguyen to Appear Pro Hac Vice. Signed by Magistrate Judge Joe Brown on 11/18/15. (rd) (Entered: 11/18/2015)

12/02/2015 70 ORDER of USCA: It is ORDERED that the motion is GRANTED and the appeal is dismissed. (afs) (Entered: 12/02/2015)

01/22/2016 71 STATUS REPORT Re Settlement Negotiations by Transcor America, LLC. (Struck, Daniel) (Entered: 01/22/2016)

01/25/2016

72 ORDER: The parties have provided a status report 71 stating that they are still in serious settlement negotiations. In view of their request for an additional 45 days to continue settlement discussions, this matter is set for a telephone conference for March 7, 2016, at 10:00 a.m. to set deadlines for the completion of the case. To participate in the conference call, parties will call 877−873−8017 and enter Code 1958322# at the scheduled time. Signed by Magistrate Judge Joe Brown on 1/25/16. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 01/25/2016)

03/02/2016 73 STATUS REPORT STATUS OF SETTLEMENT NEGOTIATIONS by Craig Arno, Ruben Cedillo, Alonzo Cleaves, John Greenemeier, Terry Houston, Leonard Hugall,

Case: 3:13-cv-869 As of: 10/19/2018 10:43 AM CDT 10 of 12

03/07/2016 03/15/2016
03/24/2016
03/31/2016 03/31/2016
04/19/2016 04/21/2016
06/07/2016 06/09/2016 06/27/2016 01/10/2017 01/11/2017
02/09/2017 02/09/2017

John Roussel, Justin Wright. (Schwartz, Andrew) (Entered: 03/02/2016)
Minute Entry for proceedings held before Magistrate Judge Joe Brown: Telephone Conference held on 3/7/2016. Order to enter. (rd) (Entered: 03/07/2016)
74 CASE MANAGEMENT ORDER: Jury Trial set for 1/9/2018 at 09:00 AM in Courtroom A826 before Chief Judge Kevin H. Sharp. Pretrial Conference set for 12/18/2017 at 01:30 PM in Courtroom A826 before Chief Judge Kevin H. Sharp. Discovery due by 4/7/2017. Dispositive Motions due by 5/12/2017. Signed by Magistrate Judge Joe Brown on 3/15/16. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(afs) (Entered: 03/15/2016)
75 ORDER: This matter has been referred to the undersigned for a judicial settlement conference with the parties 74 . A telephone conference is scheduled on Thursday, March 31, 2016, at 1:00 p.m. During this telephone conference a date and time convenient to all parties will be set. Counsel shall call 877−336−1828 and enter access code 3422454# to participate in this conference.. Signed by Magistrate Judge John S. Bryant on 3/24/16. (dt) (Entered: 03/24/2016)
Minute Entry for proceedings held before Magistrate Judge John S. Bryant: Telephone Conference held on 3/31/2016. Order to enter setting settlement conference on April 19, 2016, at 9:30 a.m. (tm) (Entered: 03/31/2016)
76 ORDER: This matter has been referred to the undersigned Magistrate Judge for a judicial settlement conference with the parties (Docket Entry No. 74 ). Therefore, a settlement conference will be held on Tuesday, April 19, 2016, at 9:30 a.m. in Courtroom 776, 801 Broadway, Nashville, Tennessee. Signed by Magistrate Judge John S. Bryant on 3/31/16. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(afs) (Entered: 03/31/2016)
Minute Entry for proceedings held before Magistrate Judge John S. Bryant: Settlement Conference held on 4/19/2016. The parties were not able to reach a settlement. (tm) (Entered: 04/19/2016)
77 ORDER: The undersigned Magistrate Judge conducted a settlement conference in this case on April 19, 2016. The parties and their respective representatives met, negotiated in good faith, but did not agree to a settlement of the claims in this case. The Clerk is directed to return this file to Magistrate Judge Brown. It is so ORDERED. Signed by Magistrate Judge John S. Bryant on 4/21/16. (af) (Entered: 04/21/2016)
78 STIPULATION /Motion for Protective Order by Transcor America, LLC. (Attachments: # 1 Attachment Proposed Protective Order)(Struck, Daniel) (Entered: 06/07/2016)
79 PROTECTIVE ORDER. Signed by Magistrate Judge Joe Brown on 6/9/16. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 06/09/2016)
80 NOTICE by Transcor America, LLC of Service of Discovery (Struck, Daniel) (Entered: 06/27/2016)
81 NOTICE of Settlement by Transcor America, LLC (Nguyen, Amy) (Entered: 01/10/2017)
82 ORDER: The parties have filed a Notice of Settlement 81 in this matter. It is hereby ORDERED that a stipulation of dismissal or other settlement document shall be filed within thirty (30) days of entry of this Order. Signed by Magistrate Judge Joe Brown on 1/11/17. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 01/12/2017)
83 STIPULATION (JOINT) FOR EXTENSION OF TIME TO FILE NOTICE OF DISMISSAL by Craig Arno, Ruben Cedillo, Alonzo Cleaves, John Greenemeier, Terry Houston, Leonard Hugall, John Roussel, Justin Wright. (Schwartz, Andrew) (Entered: 02/09/2017)
84 ORDER parties may have the time requested in their stipulation to file required documents to terminate this case. (Brown, Joe) (Entered: 02/09/2017)

Case: 3:13-cv-869 As of: 10/19/2018 10:43 AM CDT 11 of 12

03/09/2017 03/10/2017
03/13/2017 03/14/2017

85 STIPULATION re 82 Order, for Extension of Time to File Notice of Dismissal by Transcor America, LLC. (Struck, Daniel) (Entered: 03/09/2017)
86 JOINT STIPULATION FOR EXTENSION OF TIME TO FILE NOTICE OF DISMISSAL APPROVED. Signed by Chief Judge Kevin H. Sharp on 3/10/17. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 03/10/2017)
87 STIPULATION of Dismissal with Prejudice by Transcor America, LLC. (Struck, Daniel) (Entered: 03/13/2017)
88 ORDER: Pursuant to the Stipulation of Dismissal with Prejudice 87 filed by the parties, this action is hereby dismissed with prejudice pursuant to Rules 41(a) of the Federal Rules of Civil Procedure. Signed by Chief Judge Kevin H. Sharp on 3/14/17. (dt) (Entered: 03/14/2017)

Case: 3:13-cv-869 As of: 10/19/2018 10:43 AM CDT 12 of 12

 
 1 Mark E. Merin (State Bar No. 043849) LAW OFFICE OF MARK E. MERIN
2 1010 F Street, Suite 300
Sacramento, California 95814 Telephone: (916) 443-6911 Facsimile: (916) 447-8336
E-Mail: mark@markmerin.com

5 6 7 8
~~~

Andrew C. Schwartz (State Bar No. 064578) CASPER, MEADOWS, SCHWARTZ & COOK
A Professional Corporation California Plaza 2121 North California Blvd., Suite 1020 Walnut Creek, California 94596 Telephone: (925) 947-1147 Facsimile: (925) 947-1131 E-Mail: schwartz@cmslaw.com

10 Karen L. Snell (State Bar No. 100266) Attorney at Law
11 102 Buena Vista Terrace San Francisco, CA 94117
12 Telephone: (415) 225-7592 Facsimile: (415) 487-0748
13 E-Mail: ksnell@snell-law.com

14 Attorneys for Plaintiffs

15

16

IN THE UNITED STATES DISTRICT COURT

17

NORTHERN ~~CT OF CALIFORNIA

18 RUBENCEDILLO,TERRYHous~N,
19

cCM 13

JUSTIN WRIGHT, CRAIG ARNO, ALONZO

20 CLEAVES, JOHN GREENEMEIER, JOHN CLASS ACTION COMPLAINT

ROUSSEL, LEONARD HUGALL, on behalf

21 of themselves and all those similarly situated, DEMAND FOR JURY TRIAL

22

Plaintiffs,

23 vs.
24 TRANSCOR AMERICA, LLC, and DOES 1 through 100,
25 Defendants.
26

27

28

Cedillo, et a/. v. TransCor America, LLC, et a/.
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Page I

1 PLAINTIFFS COME BEFORE THIS HONORABLE COURT AND ALLEGE:

2

I. INTRODUCTION

3

1. This is an action for money damages and declaratory relief against TRANSCOR

4 AMERICA, LLC ("TRANSCOR") and DOES 1 through 100 (persons sued herein by their

5 fictitious names) for violations of plaintiffs' constitutional rights. Plaintiffs are inmates who

6 were transported by TRANSCOR on behalf of local and/or state governments. Plaintiffs allege

7 that TRANSCOR used excessive force against them and caused them to experience the

8 unnecessary and wanton infliction of pain.

9

2. Plaintiffs allege that TRANSCOR transported them sitting up in vehicles, in full

10 restraints including handcuffs, leg irons, waist chains, black boxes and connector chains; for

11 more than 59 continuous hours (plaintiffs RUBEN CEDILLO, ALONZO CLEAVES, and

12 others similarly situated), for more than 67 continuous hours (plaintiffs JUSTIN WRIGHT,

13 JOHN GREENEMEIER, JOHN ROUSSEL and others similarly situated), and for more than 95

14 continuous hours (plaintiffs CRAIG ARNO and LEONARD HUGALL and others similarly

15 situated). Plaintiffs allege that, during the time they were on a TRANSCOR vehicle,

16 TRANSCOR did not allow them to lie down, provided them with only limited access to a toilet,

17 did not allow them to attend to personal hygiene, fed them only fast food, provided limited

18 access to fluids, and deprived them of direct access to medical staff. As a direct result of

19 TRANSCOR's polices, practices and customs, each of the named plaintiffs suffered physical as

20 well as mental injuries, as detailed herein.

21

3. Plaintiffs allege that TRANSCOR's official policies, practices, and customs

22 subjected them to cruel and unusual punishment and that TRANSCOR used excessive force 23 against them in violation of their right~, and the rights of persons similarly situated, secured by

24 the Fourth, Eighth and Fourteenth Amendments to the U.S. Constitution, and entitles plaintiffs,

25 and each of those similarly situated, to recover damages and attorneys' fees under the Federal

26 Civil Rights Act (42 U.S.C. §§ 1983, 1988).

27

4. Plaintiffs further allege that TRANSCOR violated rights guaranteed to them by

28 California law, including the Bane Civil Rights Act (California Civil Code § 52.1 (b)), pursuant

Cedillo, et a/. v. TransCor America, LLC, et al.
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1 to which plaintiffs are, and each of those persons similarly situated in the subclass of inmates

2 transported by defendants in California is, entitled to recover a minimum of $4,000 for each

3 violation of rights secured to them by the constitution or laws of the state of California and the

4 constitution or laws of the United States and attorneys' fees (California Civil Code§ 52.l(h)).

5

II. JURISDICTION

6

5. This action is brought pursuant to 42 U.S.C. §§ 1983 and 1988, and the Fourth,

7 Eighth and Fourteenth Amendments to the United States Constitution. Jurisdiction is founded

8 upon 28 U.S.C. §§ 1331 and 1341(3) and (4) and the aforementioned statutory and

9 constitutional provisions.

10

6. The court has supplemental jurisdiction over plaintiffs' state claims under 28

11 U.S.C. § 1367(a).

12

7. The amount in controversy exceeds $10,000, excluding interest and costs.

13 III. INTRADISTRICT ASSIGNMENT

14 8. Transactions and events at issue in this case occurred in the Northern District of

15 California. There is a basis for assignment of this case to the San Francisco Division of the
16 Court. This action concerns substantially the same parties, property, transactions and events as

17 Schilling v. TransCor America, LLC, 3:08-CV-00941 SI (N.D. Cal.), and it appears likely that

18 there will be an unduly burdensome duplication of labor and expense or conflicting results if

19 the cases are conducted before different Judges. Plaintiffs are informed and believe that a

20 Motion to Consider Whether Cases Should Be Related will be filed in the lower numbered case,

21 Schilling v. TransCor America, LLC, pursuant to Civil Local Rule 3-12.

22

IV. PARTIES 23

24

9. Plaintiff RUBEN CEDILLO is a resident of Fresno, California, who was a

pretrial detainee when he was transported by defendant TRANSCOR in restraints in the 25

Northern District of California and elsewhere for more than 59 continuous hours. 26

27

10. Plaintiff TERRY HOUSTON is a resident ofEloy, Arizona, who was a pretrial

detainee when he was transported by defendant TRANSCOR in restraints in the Northern 28

Cedillo, et al. v. TransCor America, LLC, et al.
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Page 3

1 District of California and elsewhere for more than 59 continuous hours.

2

11. Plaintiff JUSTIN WRIGHT is a resident of Tampa, Florida, who was a pretrial

3 detainee when he was transported by defendant TRANSCOR in restraints for more than 67

4 continuous hours.

5

12. Plaintiff CRAIG ARNO is a resident of Trenton, New Jersey, who was a pretrial

6 detainee when he was transported by defendant TRANSCOR in restraints for more than 95

7 continuous hours.

8

13. Plaintiff ALONZO CLEAVES is a resident of Savannah, Georgia, who was a

9 prisoner when transported by defendant TRANSCOR in restraints for more than 59 continuous

10 hours.

11

14. Plaintiff JOHN GREENMEIER is a resident ofVernon, New Jersey, who was a

12 prisoner when transported by defendant TRANSCOR in restraints for more than 67 continuous

13 hours.

14

15. Plaintiff JOHN ROUSSEL is a resident of Madison, Wisconsin, who was a

15 prisoner when transported by defendant TRANSCOR in restraints for more than 67 continuous

16 hours.

17

16. Plaintiff LEONARD HUGALL is a resident of Lake City, Florida, who was a

18 prisoner when transported by defendant TRANSCOR in restraints for more than 95 continuous

19 hours.

20

17. Defendant TRANSCOR, a wholly owned subsidiary of Corrections Corporation

21 of America ("CCA"), was at all material times referred to herein a for-profit Tennessee

22 corporation licensed to do business in California, which was in the business of transporting

23 inmates throughout the United States pursuant to contracts with local, state, and federal

24 agencies.

25

18. Plaintiffs are informed and believe and thereon allege that defendants sued

26 herein by their fictitious names, DOES 1 through 100, are agents and/or employees of

27 defendant TRANSCOR. Plaintiffs are not currently aware of the true names and identities of

28 those sued herein as DOES 1 through 100, but will amend their complaint to include such

Cedillo, et al. v. TransCor America, LLC, et al.
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1 persons' real names once said names are made available to them.

2

19. At all times mentioned herein, TRANSCOR and each of the defendants was

3 acting under the color of law, to wit, under color of statutes, ordinances, regulations, policies,

4 customs and usages of the United States and its States, including but not limited to the State of

5 California.

6

20. Class action plaintiffs are all those similarly situated inmates who were

7 transported by TRANSCOR its agents and/or employees, and forced to remain in the transport

8 vehicle in restraints for more than 59 continuous hours; divided into subclasses of inmates

9 transported in these conditions for more than 59 but less than 67 continuous hours, more than

10 67 but less than 95 continuous hours, and more than 95 continuous hours.

11

21. For purposes of the California Bane Act Claim, class action plaintiffs are all

12 those similarly situated inmates who were transported in the State of California by

13 TRANSCOR, its agents and/or employees, and forced to remain in the transport vehicle in

14 restraints for more than 59 continuous hours; divided into subclasses of inmates transported in

15 these conditions for more than 59 but less than 67 continuous hours, more than 67 but less than

16 95 continuous hours, and more than 95 continuous hours.

17

22. Class action plaintiffs were members of the class that was certified in Schilling

f8 v. TRANSCOR America, LLC, 2010 WL 583972 (N.D. Cal.). That case tolled the statute of

19 limitations from February 14, 2006, until April4, 2013. Thus, class action plaintiffs are

20 inmates who were transported by TRANSCOR under the circumstances alleged herein for more

21 than 59, 67, or 95 hours on or after February 18, 2006, or whose claims are otherwise timely

22 under California law.

23

V. FACTS

24

23. The inmates transported by TRANSCOR include adults and juveniles, males and

25 females, pretrial detainees, sentenced prisoners, state mental hospital inmates, and immigration

26 detainees. It is TRANSCOR's policy and practice to strip search all inmates and restrain them,

27 regardless of their security classification, in handcuffs, waist or "belly" chains, leg irons,

28 interconnects, and black boxes. Belly chains keep the inmates' handcuffs at waist level. Black

Cedillo, et a/. v. TransCor America, LLC, et a/.
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1 boxes, placed over the link between the handcuffs, restrict wrist movement. Interconnects are

2 two foot chains that chain inmates together. It is TRANSCOR's policy and practice that

3 inmates' restraints may not be removed while the inmate is in transit.

4

24. TRANSCOR's transport vehicles or "transporters" are compartmentalized into

5 steel cages. It is TRANSCOR's policy and practice that inmates will remain on the vehicle, in

6 their cages, in restraints, from the time they are picked up until the time they are dropped off. 7 TRANSCOR has no written or unwritten policy stating the maximum number of hours an

8 inmate can be transported.

9

25. Most ofTRANSCOR's transport vehicles have chemical toilets on board.

Inmates are allowed to use the toilet only when the vehicle is stopped and they are escorted by a 10
guard. Inmates remain in their restraints during use of the toilet, including connector chains. 11
The connector chain requires that the inmate to whom an inmate is chained accompany him or 12
her to the toilet and prevents the door to the toilet from closing. 13
26. TRANSCOR has no policy promoting inmate hygiene during transport. There is 14
no running water. Prisoners are not allowed to wash, brush their teeth, shave, or change their
15 clothes.
16 27. TRANSCOR has no nutritional guidelines for prisoners. All of a prisoner's

17 meals are comprised of fast food during transport.

18

28. TRANSCOR provides onboard sleeping berths for the TRANSCOR employees

19 transporting the prisoners. TRANSCOR does not provide sleeping berths for inmates.

20 TRANSCOR tells inmates not to lie down during the time they are in the transport vehicle

21 because if they go to sleep, the inmates could fall out of the seat or be thrown forward when the

22 vehicle makes a stop, as the vehicles are not equipped with seatbelts.

23

29. On October 31, 2006, TRANSCOR picked up plaintiff RUBEN CEDILLO at

24 the Claremont Custody Center in Coalinga, California, where he had finished serving his

25 sentence, in order to transport him to the Fresno County Jail in Fresno, California, where he had

26 an outstanding warrant. The Claremont Custody Center is 58.21 miles from the Fresno County

27 Jail. Had TRANSCOR transported plaintiff directly from his pick up to his drop off location,

28 the trip would have taken approximately 1 hour and 10 minutes. But TRANSCOR did not

Cedillo, et al. v. TransCor America, LLC, et al.
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1 transport plaintiff directly and his trip took 59.20 hours. TRANSCOR transported plaintiff

2 from Coalinga to Soledad, Salinas, San Luis Obispo, Santa Barbara, Paso Robles, Coalinga,

3 San Jose, Fremont, Elk Grove, Woodland, Dixon, Richmond, Fremont, Lompoc, San Diego,

4 and El Central, picking up and dropping off other inmates, before finally delivering plaintiff to

5 the Fresno County Jail on November 3, 2006.

6

30. Throughout the trip, the restraints caused plaintiff physical and emotional pain,

7 which became progressively worse, and caused plaintiff to suffer physical injuries. It was

8 impossible for plaintiff to get comfortable. He could not stretch his legs or arms. He was not

allowed to lie down. Sitting up, he was only able to sleep for a short time. When he saw the 9

guards stop for showers, he requested a shower. Instead, and without warning, TRANSCOR
10
employees sprayed him with Lysol disinfectant, causing him to feel further dehumanized and 11
degraded. 12
31. On June 9, 2006, TRANSCOR picked up plaintiff TERRY HOUSTON in
13
Redding, California, where he had finished serving his sentence, in order to transport him to 14
San Luis Obispo, California, where charges had been pending but were dropped prior to his
15 transportation. San Luis Obispo is approximately 430 miles from Redding. Had TRANSCOR
16
transported plaintiff directly from his pick up to his drop off location, the trip would have taken

17
less than seven hours. But TRANSCOR did not transport plaintiff directly and his trip took

18 59.33 hours. TRANSCOR transported plaintiffup and down the State of California, including

19 within the Northern District of California, before finally delivering plaintiff to the San Luis

20 Obispo Jail on June 11, 2006.

21

32. Throughout the trip, the restraints caused plaintiff physical and emotional pain,

22 which became progressively worse. He was not allowed to lie down. Sitting up, he was only

23 able to sleep for a short time. His handcuffs were too tight and his hands became swollen.

24 Plaintiff begged the TRANSCOR agents to loosen his cuffs but they would not do so. They

25 refused to give him bathroom breaks when he needed them. Plaintiff was not allowed to stand

26 or to stretch. His back still hurts from the lack of mobility for such a long time.

27

33. On June 4, 2006, TRANSCOR picked up plaintiff Justin M. WRIGHT, a pretrial

28 detainee, at the Brevard County Jail in Sharpes, Florida, in order to transport him to the

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1 Chemung County Jail in Elmira, New York. The Brevard County Jail is 1141.29 miles from

2 the Chemung County Jail. Had TRANSCOR transported plaintiff directly from his pick up to

3 his drop off location, the trip would have taken approximately 18 hours and 39 minutes. But

4 TRANSCOR did not transport plaintiff directly and his trip lasted eight days. During the first

5 leg of the journey, TRANSCOR transported plaintiff for 72.75 continuous hours. TRANSCOR

6 then dropped plaintiff off at the Christian County Jail in Hopkinsville, Kentucky, picked him

7 up, and transported him for 56.60 continuous hours, before finally delivering him to Chemung

8 County Jail on June 12, 2006.

34. Throughout his time on the TRANSCOR vehicle, plaintiff was forced to remain
9
sitting up and was restrained in handcuffs, leg shackles, a waist chain, and a black box, and he
10
was chained to another inmate. He was told not to stand up except when he was taken to the on 11
board toilet. It was hard for plaintiff to eat or drink or go to the bathroom the way he was 12
chained. The restraints caused him physical and mental pain, which became progressively
13
worse, and caused plaintiff to suffer physical and mental injuries. He told the guards the 14
restraints were too tight more than once during his first 72.75 hours, and they did nothing. It
15 was impossible for plaintiff to get comfortable. He could not stretch his legs or arms. During
16 the days and nights on the transporter, plaintiff was unable to sleep at all. He was never given

17 the opportunity to take a shower. He sought treatment for the pain in his back when he reached

18 Elmira, and still has physical problems with his back from the experience.

19

35. On November 12,2007, TRANSCOR picked up plaintiff CRAIG ARNO, a

20 pretrial detainee, at the Hutchinson State Jail in Dallas, Texas, in order to transport him to a

21 county detention facility in Mays Landing, New Jersey. The State Jail in Dallas is 1486.52

22 miles from Mays Landing. Had TRANSCOR transported plaintiff directly from his pick up to

23 his drop off location, the trip would have taken approximately 23 hours and 40 minutes. But

24 TRANSCOR did not transport plaintiff directly, and his trip lasted eight days. During one leg

25 of the journey, TRANSCOR transported plaintiff for 95.42 continuous hours. TRANSCOR

26 then dropped him off at a contract facility, picked him up, and transported him for 29.67

27 continuous hours before finally delivering him to the county detention facility in Mays Landing

28 on November 20,2007.

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Page 8

1

36. Throughout his time on the TRANSCOR vehicles, plaintiff was forced to remain

2 sitting up and was restrained in handcuffs, leg shackles, a waist chain, and a black box, and he

3 was chained to another inmate. The connector chain was so short that he could not move

4 without moving the other person. Plaintiff repeatedly told the TRANSCOR officer that his

5 hands were swollen and that there was something the matter. It was difficult and extremely

6 painful for him to eat and drink. Plaintiff went days without sleep because he had no bed and

7 was chained to another person at all times. TRANSCOR's buses had poor shocks, and when

8 they hit a hole, the inmates were bounced out of their seats. Plaintiff could not urinate when he

9 wanted to. Using the toilet was difficult. Plaintiff and the other passengers waited in the

vehicle in their restraints when the TRANSCOR employees stopped for showers and to change 10
their clothes. Two days into the journey, the restraints caused plaintiffs hands to swell to the
11
size of softballs. His wrists were lacerated and became infected. Only then did TRANSCOR 12
authorize his handcuffs to be replaced with shackles, but on the second leg of his j oumey a 13
TRANSCOR agent insisted he wear handcuffs again, aggravating his injuries. Plaintiff also 14
suffered rashes on his groin, back, legs, backside and face due to the lack of proper hygiene. 15
Plaintiff had to be treated on the infection unit for a week when he reached his destination. He
16
continues to suffer pain in his wrist, elbows, knees, sides, back, hips, and he cannot get a good

17 night's sleep. He is required to take medication daily to deal with this pain. His wrists still

18 bear scars from the handcuffs.

19

37. On August 31, 2007, TRANSCOR picked up plaintiff ALONZO CLEAVES, a

20 sentenced prisoner, at the Clark County Jail in Las Vegas, Nevada, in order to transport him to

21 the Estill Federal Correctional Institution in Estill, South Carolina. The Clark County Jail is

22 approximately 2200 miles from FCI Estill. Had TRANSCOR transported plaintiff directly

23 from his pick up to his drop off location, the trip would have taken approximately 34 hours.

24 But TRANSCOR did not transport plaintiff directly, and his trip lasted five days. TRANSCOR

25 transported plaintiff for 45 continuous hours, housed him for five days, then transported him for

26 64.68 continuous hours before finally delivering him to FCI Estill on September 10, 2007.

27

38. Throughout his time on the TRANSCOR vehicle, plaintiff was forced to remain

28 sitting up and was restrained in handcuffs, leg shackles, a waist chain, and a black box, and he

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Page 9

1 was chained to another inmate. He was told not to stand up except when he was taken to the on

2 board toilet. It was hard for plaintiff to eat or drink or go to the bathroom the way he was

3 chained. The restraints caused him physical and mental pain, which became progressively

4 worse, and caused plaintiff to suffer physical and mental injuries.

5

39. On September 14,2006, TRANSCOR picked up plaintiff JOHN

6 GREENEMEIER, a sentenced prisoner, at a detention facility in Arizona, in order to transport

7 him to a county detention facility in New Jersey, on behalf of state and local law enforcement

8 agencies. The detention facility in Arizona is approximately 2400 miles from the facility in

New Jersey. Had TRANSCOR transported plaintiff directly from his pick up to his drop off 9
location, the trip would have taken approximately 37 hours. But TRANSCOR did not
10
transport plaintiff directly, and his trip lasted 13 days. During his journey, TRANSCOR 11
transported plaintiff for 40.68 hours, housed him for four days, transported him for 67.78 12
continuous hours, housed him for four days, then transported him for 27.40 hours before finally 13
delivering him to the county detention facility in New Jersey on September 27, 2006. 14
40. Throughout his time on the TRANSCOR vehicle, plaintiff was forced to remain
15 sitting up and was restrained in handcuffs, leg shackles, a waist chain, and a black box, and he
16 was chained to another inmate. He was told not to stand up except when he was taken to the on

17 board toilet. It was hard for plaintiff to eat or drink or go to the bathroom the way he was

18 chained. The restraints caused him physical and mental pain, which became progressively

19 worse, and caused plaintiff to suffer physical and mental injuries.

20

41. On March 17,2007, TRANSCOR picked up plaintiff JOHN ROUSSEL, a

21 sentenced prisoner, at the North Central Correctional Facility in Rockwell City, Iowa, in order

22 to transport him to the Dane County Jail in Madison, Wisconsin, on behalf of state and/or local

23 law enforcement agencies. The North Central Correctional Facility is approximately 307 miles

24 from the Dane County Jail. Had TRANSCOR transported plaintiff directly from his pick up to

25 his drop off location, the trip would have taken approximately 5 hours. But TRANSCOR did

26 not transport plaintiff directly, and his trip lasted more than seven days. During his journey,

27 TRANSCOR transported plaintiff for 26.58 continuous hours, housed him for three days, then

28 transported him for 71.83 continuous hours before finally delivering him to the Dane County

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1 Jail on March 24, 2007.

2

42. Throughout his time on the TRANSCOR vehicle, plaintiff was forced to remain

3 sitting up and was restrained in handcuffs, leg shackles, a waist chain, and a black box, and he

4 was chained to another inmate. He was told not to stand up except when he was taken to the on

5 board toilet. It was hard for plaintiff to eat or drink or go to the bathroom the way he was

6 chained. The restraints caused him physical and mental pain, which became progressively

7 worse, and caused plaintiff to suffer physical and mental injuries.

8

43. On October 11, 2007, TRANSCOR picked up plaintiff LEONARD HUGALL, a

sentenced prisoner, in Ocala, Florida, in order to transport him to a county detention facility in 9
Michigan, on behalf of state and local law enforcement agencies. Ocala, Florida, is 10
approximately 1170 miles from the facility in Michigan. Had TRANSCOR transported 11
plaintiff directly from his pick up to his drop off location, the trip would have taken
12
approximately 18 and one half hours. But TRANSCOR did not transport plaintiff directly, and
13
his trip lasted four days. TRANSCOR transported plaintiff for 95.50 continuous hours before 14
finally delivering him to the county detention facility in Michigan on October 15, 2007.
15 44. Throughout his time on the TRANSCOR vehicle, plaintiff was forced to remain
16
sitting up and was restrained in handcuffs, leg shackles, a waist chain, and a black box, and he

17 was chained to another inmate. He was told not to stand up except when he was taken to the on

18 board toilet. It was hard for plaintiff to eat or drink or go to the bathroom the way he was

19 chained. The restraints caused him physical and mental pain, which became progressively

20 worse, and caused plaintiff to suffer physical and mental injuries.

21

45. There was no penological necessity for Defendant TRANSCOR to transport

22 inmates in these inhumane conditions. Had TRANSCOR transported inmates reasonably

23 directly from their pick up to their drop off locations they would have arrived in significantly

24 less time. Moreover, TRANSCOR contracts with numerous detention facilities, and there are

25 others as well that are available to house TRANSCOR inmates overnight and provide them

26 with the opportunity to stretch, free of restraints, to lie down, and to attend to personal hygiene.

27

46. As a result ofTRANSCOR's policies, practices, or customs described herein,

28 plaintiffs, and all those similarly situated, have suffered physical, mental, and emotional

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1 injuries, invasion of privacy, and violation of federal and state statutory and constitutional 2 rights. Plaintiffs, and all those similarly situated, are entitled to recover damages according to 3 proof, including exemplary damages.

4

VI. CLASS CLAIMS

5

47. Defendant TRANSCOR AMERICA, LLC, used excessive force against

6 plaintiffs and deprived plaintiffs, and all those similarly situated, of the minimal civilized

7 measure oflife's necessities, including sleep, exercise, hygiene and medical care. Class action

8 plaintiffs are inmates transported by Defendant TRANSCOR on or after February 14, 2006,

9 who were forced to remain in a TRANSCOR vehicle for more than 59 continuous hours. The

10 class is divided into subclasses of inmates subjected to these conditions for more than 59 but

11 less than 67 continuous hours (represented by plaintiffs Ruben Cedillo and Alonzo Cleaves),

12 more than 67 but less than 95 continuous hours (represented by plaintiffs Justin Wright, John

13 Greenemeier, and John Roussel), and more than 95 continuous hours (represented by plaintiffs

14 Craig Arno and Justin Hugall).

15

48. The class is also defined to include subclasses of inmates who were transported

16 within the State of California by TRANSCOR AMERICA, LLC, its agents and/or employees,

17 and were forced to remain in the transport van for more than 59, 67, and 95 hours, whose

18 claims are timely under California law, including the tolling provisions of California Code of

19 Civil Procedure sections 352 and 352.1.

20

49. In accordance with Federal Rules of Civil Procedure, Rule 23(a), the members of

21 the class are so numerous that joinder of all members is impractical. Plaintiffs do not know the

22 exact number of class members. Plaintiffs are informed and believe, and thereupon allege, that

23 there are approximately 4900 persons in the proposed class.

24

50. In accordance with Federal Rules of Civil Procedure, Rule 23(a), plaintiffs are

25 informed and believe, and thereupon allege, that there are many facts common to the class

26 including but not limited to: (a) whether defendants have a policy, practice, or custom of

27 transporting inmates in restraints for more than 59, 67, and 95 hours at a time; (b) whether

28 defendants have a policy, practice or custom of depriving inmates of sleep; (c) whether

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1 defendants have a policy, practice or custom of depriving inmates of adequate hygiene; (d)

2 whether defendants have a policy, practice or custom of depriving inmates of adequate exercise;

3 and (e) whether defendants have a policy, practice or custom of depriving inmates of adequate

4 medical care.

5

51. In accordance with Federal Rules of Civil Procedure, Rule 23(a), plaintiffs are

6 informed and believe, and thereupon allege, that there are many questions of law common to

7 the class including but are not limited to: (a) whether transporting inmates in metal cages,

8 restrained with handcuffs, shackles, a waist chain, and a connector chain for more than 59, 67,

9 or 95 continuous hours violates the Fourth, Eighth, and Fourteenth Amendments; (b) whether

10 depriving inmates of sleep for more than 59, 67, or 95 continuous hours violates the Fourth,

11 Eighth, and Fourteenth Amendments; (c) whether restricting inmates' access to a toilet and

12 sanitation for more than 59, 67, or 95 continuous hours violates the Fourth, Eighth, and

13 Fourteenth Amendments; (d) whether depriving inmates of movement free of restraints for

14 more than 59, 67, or 95 continuous hours violates the Fourth, Eighth, and Fourteenth

15 Amendments; (e) whether failing to have plaintiffs' restraints checked by a trained medical

16 professional for more than 59, 67, or 95 continuous hours violates the Fourth, Eighth, and

17 Fourteenth Amendments; and (f) whether a combination of these conditions imposed for more

18 than 59, 67, or 95 continuous hours violates the Fourth, Eighth, and Fourteenth Amendments.

19

52. In accordance with Federal Rules of Civil Procedure, Rule 23(a), the claims of

20 the representative plaintiffs are typical of the class. Representative plaintiffs have the same

21 interests and suffered the same type of injuries as all ofthe class members. Plaintiffs' claims

22 arose because of defendants' official policy, practice, or custom of subjecting inmates to

23 unlawful conditions of confinement, excessive force, and cruel and unusual punishment.

24 Plaintiffs' claims are based upon the same legal theories as the claims of the class members.

25 Each class member suffered actual damages as a result of being transported under the

26 conditions imposed by TRANSCOR.

27

53. In accordance with Federal Rules of Civil Procedure, Rule 23(a), the

28 representative plaintiffs will fairly and adequately protect the class interests. Plaintiffs'

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1 interests are consistent with and not antagonistic to the interests of the class.

2

54. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(1 )(A),

3 prosecutions of separate actions by individual members of the class would create a risk that

4 inconsistent or varying adjudications with respect to individual members of the class would

5 establish incompatible standards of conduct for the parties opposing the class.

6

55. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(l)(B),

7 prosecutions of separate actions by individual members of the class would create a risk of

8 inconsistent adjudications with respect to individual members of the class which would, as a

9 practical matter, substantially impair or impede the interests of the other members of the class

10 to protect their interests.

11

56. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(2), plaintiffs

12 are informed and believe, and thereupon allege, that defendants have acted on grounds

13 generally applicable to the class, thereby making appropriate the final injunctive or declaratory

14 relief with respect to the class as a whole.

15

57. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(3), this class

16 action is superior to other available methods for the fair and equitable adjudication of the

17 controversy between the parties. Plaintiffs are informed and believe, and thereupon allege, that

18 the interests of members of the class in individually controlling the prosecution of a separate

19 action is low, in that most class members would be unable individually to prosecute any action

20 at all. Plaintiffs are informed and believe, and thereupon allege, that the amounts at stake for

21 individuals are so small that separate suits would be impracticable. Plaintiffs are informed and

22 believe, and thereupon allege, that most members of the class will not be able to find counsel to

23 represent them. Plaintiffs are informed and believe, and thereupon allege, that it is desirable to

24 concentrate all litigation in one forum because it will promote judicial efficiency to resolve the

25 common questions of law and fact in one forum, rather than in multiple courts.

26

58. Plaintiffs are informed and believe, and thereupon allege, that the identities of

27 the class members may be ascertained from records maintained by defendant TRANSCOR.

28 Plaintiffs are informed and believe, and thereupon allege, that records maintained by defendants

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,·

1 reflect the identity of each person who was subjected to transportation, the time and location of

2 pick up, the time and location of drop off, and the duration of time each inmate remained in a

3 TRANSCOR vehicle. Plaintiffs are informed and believe, and thereupon allege, that all of the

4 foregoing information is contained in defendants' records and that the information necessary to

5 identify the class members, by last known addresses, is readily available from said records.

6

59. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(3), class

7 members must be furnished with the best notice practicable under the circumstances, including

8 individual notice to all members who can be identified through reasonable effort. Plaintiffs

9 contemplate that individual notice will be given to class members at their last known address by

10 first class mail. Plaintiffs contemplate that the notice will inform class members of the

11 following:

12

1.

The pendency of the class action and the issues common to the class;

13

11.

The nature of the action;

14

111.

Their right to "opt out" of the action within a given time, in which

15

event they will not be bound by a decision rendered in the class action;

16

IV.

Their right, if they do not "opt out," to be represented by their own

17

counsel and to enter an appearance in the case; otherwise they will be

18

represented by the named class plaintiffs and their counsel; and

19

v.

Their right, if they do not "opt out," to share in any recovery in favor of

20

the class, and conversely to be bound by any judgment on the common

21

issues adverse to the class.

22

VII. CAUSES OF ACTION

23

FIRST CLAIM FOR RELIEF

24

(Violation Of The Fourth, Eighth And Fourteenth Amendments To The U.S.

25

Constitution On Behalf Of Plaintiffs And All Persons Similarly Situated

26

Against All Defendants And Each Of Them )

60. Plaintiffs hereby incorporate herein the preceding paragraphs of this complaint, 27

28 to the extent relevant, as if fully set forth.

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1

61. Defendants' policies, practices, or customs regarding the transportation of

2 inmates violated the rights of plaintiffs, and each of those similarly situated, under the Fourth,

3 Eighth and Fourteenth Amendments, to be free from unlawful conditions of confinement, the

4 use of excessive force, and cruel and unusual punishment, and violated the rights of plaintiffs,

5 and each of those similarly situated, under the Fourteenth Amendment, to due process and

6 privacy, and directly and proximately damaged plaintiffs, and each of those similarly situated,

7 as herein alleged, entitling plaintiffs, and each of those similarly situated, to recover damages

8 for said constitutional violations pursuant to 42 U.S.C. § 1983.

9

WHEREFORE, plaintiffs, on behalf of themselves and on behalf of each of those

10 similarly situated, pray for relief as hereunder appears.

11

SECOND CLAIM FOR RELIEF

12 (Violation Of The California State Bane Civil Rights Act, Civil Code Section

13

52.1, On Behalf Of Plaintiffs And All Persons Similarly Situated

Against All Defendants And Each Of Them)

14

62. Plaintiffs hereby incorporate herein the preceding paragraphs of this complaint,

15 to the extent relevant, as if fully set forth.

16

63. Defendants, and each of them, have interfered by threats, intimidation, or

17 coercion with plaintiffs' rights, and the rights of all those similarly situated, secured by the

18 Constitution of the United States and the rights secured by the Constitution of California.

19

64. Plaintiffs, and each of the persons plaintiffs seek to represent, were harmed by

20 defendants' interference with their aforementioned constitutional and statutory rights.

21

65. By using threats, intimidation and coercion to interfere with the aforementioned

22 constitutional and statutory rights of plaintiffs, and each of the persons plaintiffs seek to

23 represent, defendants, and each ofthem, have violated California Civil Code§ 52.1.

24

66. Defendants' violations of California Civil Code § 52.1 make them liable to each

25 plaintiff for damages up to a maximum of three times the amount of each plaintiffs actual

26 damages, but in no event less than four thousand dollars ($4,000), together with any attorney's

27 fees and costs that may be determined by the court.

28

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1

WHEREFORE, plaintiffs, on behalf of themselves and on behalf of all those similarly

2 situated, pray for relief as hereunder appears.

3

VIII. PRAYER FOR RELIEF

4

WHEREFORE, plaintiffs, on behalf of themselves and on behalf of all those similarly

5 situated, seek judgment as follows:

6

a.

For declaratory and injunctive relief declaring illegal and enjoining,

7

preliminarily and permanently, defendants' policy, practice, or custom of

8

transporting pretrial detainees and prisoners under the conditions described

9

herein;

10

b. Certification of the action as a class action;

11

c.

For compensatory, general, and special damages for each representative plaintiff

12

and for each member of the class of plaintiffs, as against all defendants;

13

d. Exemplary damages as against each of the defendants in an amount sufficient to

14

deter and to make an example of those defendants;

15

e.

Attorneys' fees and costs under 42 U.S.C. § 1988, and California Civil Code§§

16

52 et seq.; and,

17

f.

The cost of this suit and such other relief as the court finds just and proper.

18

IX. DEMAND FOR A JURY TRIAL

19

Pursuant to Federal Rules of Civil Procedure 38(b), a jury trial is hereby demanded.

20 DATED: April 8, 2013
21

Respectfully submitted,

22

23

By:_ _ _~ _ _ _ _L _/ L _f,_ "\-._ __

Andrew C. Schwartz

24

CASPER, MEADOWS, SCHWARTZ & COOK

Attorneys for Plaintiffs 25

26

27

28

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 UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION

RUBEN CEDILLO, TERRY HOUSTON,

)

JUSTIN WRIGHT, CRAIG ARNO, ALONZO )

CLEAVES, JOHN GREENEMEIER, JOHN )

ROUSSEL, LEONARDI guess Tara and

)

Sheila had it out yesterday. Kara and Tim

)

were in Dan's office this morning discussing it )

HUGALL,

)

)

Plaintiffs,

v.

)

)

TRANSCOR AMERICA, LLC,

)

)

Defendant.

)

)

Case No. 3:13-cv-00869 Judge Sharp Magistrate Judge Brown
Jury Demand

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT TRANSCOR’S MOTION FOR JUDGMENT ON THE PLEADINGS I. BACKGROUND.
Three plaintiffs, Kevin Schilling, John Pineda and William Tellez, originally filed an
action entitled Schilling, et al v. TransCor, No. C 08-941 SI, in the Northern District of California on February 14, 2008. Complaint at ¶¶ 8, 22; Schilling Complaint, Ex. 1. 1 The

1 In addition to considering the allegations of Plaintiffs’ Complaint, TransCor has attached to its Motion certain public documents filed in the predecessor Schilling action, of which TransCor requests the Court take judicial notice under Fed.R.Evid. 201. A court may consider public records when deciding a Rule 12(b)(6) or (12 (c) motion without converting the motion to one for summary judgment, particularly where such prior court proceedings are referenced in, but not attached to, the complaint and “are central to the plaintiff’s claim.” See Jackson v. City of Columbus, 194 F.3d 737, 745-46 (6th Cir.1999) (public court records from a related case); and 5A CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1357 (2d ed. 1990) (“In determining whether to grant a Rule 12(b)(6) motion, the court primarily considers the allegations in the complaint, although matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint, also may be taken into account.”). Additionally, Plaintiffs’ tolling allegations are “legal conclusions that
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Schilling action challenged the constitutionality of the treatment of these three individual inmates
during their extradition trips in California and Nevada respectively taken in September, August,
and February of 2006, and further sought relief for a class of at least 16,000 other inmates who
were transported in restraints for at least 24 hours by TransCor during the time period of 2006-
2008. Id. at ¶¶ 15, 30; Ex. 2, Order Granting Class Certification; Schilling v. TransCor, 2010
WL 583972, at *7 (N.D.Cal. Feb. 16, 2010). Before obtaining class certification, Plaintiffs
estimated “the class damage claim to be $223,670,000.00.” Ex. 3, Joint Case Mgt. Statement at
§ 11.
On February 16, 2010, the Northern District of California (Judge Illston) granted the
Schilling plaintiffs’ motion for class certification by certifying the following class:
A class of all pretrial detainees and prisoners who were transported by TransCor America LLC, its agents and/or employees between February 14, 2006 and the present, and who were forced to remain in restraints in the transport vehicle for more than 24 hours without being allowed to sleep overnight in a bed. The class includes pretrial detainees and prisoners who were removed from one transport vehicle and placed directly onto another, without being housed overnight, whose combined trip lasted more than 24 hours. Schilling, Ex. 2 at 18.2 Judge Illston also certified a subclass of California prisoners covering the
same class period for purposes of pursuing relief under California’s Bane Act. Id. at 19. A Class
Notice was published for three months in the Prison Legal News, advising affected inmates that
the district court is not required to accept as true.” Wyster-Pratte Management Co., Inc. v. Telxon Corp., 413 F.3d 553, 561 (6th Cir. 2005). 2 After TransCor unsuccessfully challenged the class certification order in appeals to the Ninth Circuit and Supreme Court, TransCor v. Schilling, 131 S.Ct. 1044 (Jan. 24, 2011), the parties undertook written and deposition discovery, participated in additional case management conferences, and Defendants sought clarification and/or decertification of the class following the Supreme Court’s decision in Wal-Mart, Inc. v. Dukes, 131 S.Ct. 2541 (2011). During briefing on the parties’ cross-motions for partial summary judgment, the Court denied Defendants’ motion. Schilling v. TransCor, 2012 WL 2792688 (N.D.Cal. July 9, 2012).
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they were members of the certified class, and giving all class members an opportunity to opt out.
Ex. 5.
After the Schilling plaintiffs and Defendants filed cross-motions for summary judgment
on the constitutionality of the inmates’ treatment, the Northern District of California denied
plaintiffs’ motion and granted Defendants’ cross-motion on August 8, 2012, framing the
dispositive issue as follows:
As an initial matter, the Court is required – in light of the class definition – to confine its analysis to determining whether the conditions complained of inflict a constitutional deprivation if their duration is ‘more than 24 hours.’ As 24 hours plus one minute is the lowest common denominator for the class, the Court must determine whether depriving prisoners of a bed, and/or holding them in restraints, and/or depriving them of sanitation facilities for 24 hours and one minute is ‘sufficiently serious’ to amount to a constitutional deprivation.
* * *
For the foregoing reasons, the Court finds that the conditions plaintiffs complain of – in the context of transportation of prisoners and over a 24-hour plus one minute period – do not, without more and on a class-wide basis, constitute unconstitutional deprivations under the Eighth or Fourteenth Amendments. To be clear, the Court does not find that the conditions alleged, if imposed for periods exceeding 24 hours or if imposed in different manners or with specific injuries, could not constitute unconstitutional deprivations to individual prisoners. As a class–wide matter, however, and on the record presented, the Court does not find that plaintiffs have established or can establish a constitutional violation.
Ex. 6 at 9; Schilling v. TransCor, 2012 WL 3257659, at *11 (N.D.Cal. Aug. 8, 2012).
After this adverse class judgment, the Schilling plaintiffs sought to amend the class
certification order to propose smaller and divided subclasses with lengthier transport periods of:
(a) 24 to 48 hours; (b) 48 to 72 hours; (c) 72 to 96 hours; and (d) 96-plus hours, with new class
representatives proposed (inmates Justin Wright, Craig Arno, Troy Kincheloe, and Ruben
Cedillo). Ex. 7, Motion to Amend Class Certification. After Judge Illston denied this class
amendment motion on October 11, 2012, Ex. 8, the Schilling plaintiffs proposed and the court
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approved a “Class Notice” advising prisoners who may have been part of the certified class to
file their own actions because the statute of limitations had resumed running in light of the recent rulings. Ex. 10 at Ex. 1 [ECF 220-1].3 Specifically, the Class Notice (published in a January,
2013 edition of Prison Legal News) advised:
On August 8, 2012, the Court granted the defendants’ motion for summary judgment, finding that the mere fact that a person was transported, restrained, and denied overnight sleep in a bed for 24 hours did not violate[] the Eighth Amendment. On October 11, 2012, the Court denied plaintiffs’ motion to amend the class certification order to establish classes of persons transported for two, three, four or more days. The effect of these orders is to restart the clock ticking on the statute of limitations applicable to claims of persons who had been in the originally certified class. Those claims may be barred by the mere passage of time, unless you take immediate action to preserve your rights by filing your own action in court.
***
If this class action was filed before your right to file a claim expired, the time to file was stayed or tolled until the court’s recent actions when the clock started ticking again. That’s why you must immediately consult with attorneys to find out how and when you must act in order to protect your rights.
Id. (emphasis added); see also Ex. 11, Prison Legal News, January (2013). The claims of the
individual plaintiffs were settled at a January 10, 2013 settlement conference (Ex. 12), an order
dismissing the case with prejudice entered on January 31, 2013 and, pursuant to the parties’
stipulation, the dismissal order was revised and the case terminated April 4, 2013. Exs. 13 & 14.
This new action, Cedillo v. TransCor, was filed April 8, 2013 in the Northern District of
California by the same attorneys who represented the Schilling Plaintiffs. Because the eight (8)
Plaintiffs were transported on TransCor vehicles in the 2006-07 period across segments of the
country having little or no connection to the Northern District of California, and because the
3 On November 2, 2012, TransCor also filed a document entitled “Defendants’ Notice of Intent to Argue Resumption of Statute of Limitations on August 8, 2012 for Future Claims.” Ex. 10.
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majority of the witnesses were Tennessee-based, TransCor moved to transfer venue to the
Middle District of Tennessee, which motion was granted. ECF 24.
According to the Complaint, the respective residencies, transport dates and routes of the
eight plaintiffs are as follows:
• Ruben Cedillo (California resident): October 31-November 3, 2006 trip from Coalinga, California to Fresno, California (Complaint at ¶ 29);
• Terry Houston (Arizona resident): June 9-11, 2006 extradition trip from Redding, CA facility to San Luis Obispo, CA facility (Id. at ¶ 31);
• Justin Wright (Tampa, FL resident): June 4-12, 2006 extradition trip from facility in Sharpes, Florida to facility in Elmira, New York, divided into two travel segments separated by a multiple-day stopover at Christian County Jail in Hopkinsville, Kentucky (Id. at ¶ 33);
• Craig Arno (Trenton, NJ resident): November 12-20, 2007 extradition trip from facility in Hutchison, Texas to facility in Atlantic City, New Jersey, include multi-day stopover at Christian County Jail in Hopkinsville, Kentucky (Id. at ¶ 35);
• Alonzo Cleaves (Savannah, GA resident): August 31-September 10, 2007 extradition trip from facility in Las Vegas, Nevada to facility in Estill, South Carolina, include multi-day stopover at Christian County Jail in Hopkinsville, Kentucky (Id. at ¶ 37);
• John Greenemeier (Vernon, NJ resident): September 14-27, 2006 extradition trip from facility in Arizona to facility in New Jersey, include multi-day stopover at Christian County Jail in Hopkinsville, Kentucky (Id. at ¶ 39);
• John Roussel (Madison, WI resident): March 17-24, 2007 extradition trip from facility in Iowa to facility in Madison, Wisconsin, including multi-day stopover at Christian County Jail in Hopkinsville, Kentucky (Id. at ¶ 41);
• Leonard Hugall (Lake City, FL resident): October 11-15, 2007 trip from facility in Florida to Michigan, including a multi-day stopover at Christian County Jail in Hopkinsville, Kentucky, to help Michigan police find the body of a 13-year-old girl raped and killed in 1984 (Id. at ¶ 43; http://www.wsvn.com/news/articles/local/MI64136).
Thus, by the time the Schilling Complaint was filed on February 14, 2008, the following
time periods had already passed on the individual Plaintiffs’ claims:
• Cedillo: 15 months, 11 days; • Houston: 20 months, 3 days; • Wright: 20 months, 2 days; • Arno: 2 months, 25 days; • Cleaves: 5 months, 4 days; • Greenmeier: 16 months, 18 days; • Roussell: 10 months, 20 days; and • Hugall: 3 months, 30 days.
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II. LEGAL ANALYSIS. “For purposes of a motion for judgment on the pleadings, all well-pleaded material
allegations of the pleadings of the opposing party must be taken as true, and the motion may be granted only if the moving party is nevertheless clearly entitled to judgment.” Tucker v. Middleburg-Legacy Place, 539 F.3d 545, 549 (6th Cir. 2008) (quoting JP Morgan Chase Bank, N.A. v. Winget, 510 F.3d 577, 581 (6th Cir. 2007). Before addressing the untimeliness of the claims brought by certain individual Plaintiffs, TransCor will address the inapplicability of equitable tolling and res judicata to the class claims asserted by Plaintiffs.
A. AMERICAN PIPE TOLLING DOES NOT APPLY TO SUBSEQUENT CLASS ACTIONS, REQUIRING DISMISSAL OF ALL CLASS CLAIMS.
The Supreme Court has held that “the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action.” American Pipe & Constr. Co. v. Utah, 414 U.S. 538, 554 (1974). The Supreme Court subsequently extended the doctrine, holding that “all members of the putative class [may] file individual actions in the event that class certification is denied, provided . . . that those actions are instituted within the time that remains on the limitations period.” Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 346–47 (1983). Thus, American Pipe tolling extends to all putative class members, whether seeking to intervene or to initiate their own suit, in order to give full effect to the efficiency and economy goals of class action procedure. Without such protection, putative class members would have an incentive to file unnecessary, individual lawsuits to protect their rights in the event of denial of class certification. 462 U.S. at 349–51.
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The Sixth Circuit’s decision in Andrews v. Orr, 851 F.2d 146 (6th Cir. 1988) emphasized the limitations of American Pipe tolling to successive class actions. In the predecessor action, class certification was initially denied, and the plaintiff filed a second motion for class certification. Before the court could rule on that motion, the plaintiff settled her individual claim and the suit was dismissed with prejudice. Andrews, 851 F.2d at 147–48. The putative class members from the original case later filed the Andrews suit, asserting both individual and class claims. Id. The Sixth Circuit rejected any notion of tolling for the subsequent class action:
We also agree with the district court’s conclusions concerning the plaintiffs’ attempt to gain classwide relief. The courts of appeals that have dealt with the issue appear to be in unanimous agreement that the pendency of a previously filed class action does not toll the limitations period for additional class actions by putative members of the original asserted class. Id. at 149 (emphasis added). Cases from across the country recognize this same limitation—that tolling protects only the individual claims of absent class members, and does not apply to followon class actions, for to do so would be an “abusive” practice, and result in a never-ending filing of subsequent actions. See Robbin v. Fluor Corp., 835 F.2d 213, 214 (9th Cir.1987) (“We agree with the Second Circuit that to extend tolling to class actions “tests the outer limits of the American Pipe doctrine and ... falls beyond its carefully crafted parameters into the range of abusive options.”); and Korwek v. Hunt, 827 F.2d 874, 878 (2nd Cir.1987) (putative class members may not “piggy-back one class action onto another and thus toll the statute of limitations indefinitely.”).4
4 See also Madani v. Shell Oil, 357 Fed. Appx. 158 (9th Cir. 2009) (“The district court correctly ruled that the limitations period for this class action was not tolled by a prior class action. Robbin v. Fluor Corp., 835 F.2d 213, 214 (9th Cir.1987). Nor does Catholic Soc. Servs., Inc. v. INS, 232 F.3d 1139 (9th Cir.2000) (en banc), compel a different result. None of the peculiar reasons justifying tolling in that case is present in this case.”), cert. denied, 130 S.Ct. 3477 (2010).
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The Sixth Circuit’s recent decision in Vertrue, Inc. Marketing and Sales Practices Litigation, 719 F.3d 474 (6th Cir. 2013) illustrates the wisdom of not allowing tolling under the present circumstances. The litigation in Vertrue involved a prior class action challenging the marketing practices of a company, yet the plaintiffs in that first action had never obtained a ruling on class certification, which the Sixth Circuit held created an exception to the general Andrews rule against tolling for successive class actions:
Here, no court has definitively ruled on class certification, as the district court dismissed the plaintiffs’ actions in Sanford before ruling on the plaintiffs’ motion for class certification. Sanford, 2008 WL 4482159, at *6. Because the risk motivating our decision in Andrews—namely, repetitive and indefinite class action lawsuits addressing the same claims—is simply not present here, we hold that the commencement of the original Sanford class action tolled the statute of limitations under American Pipe. The parties agree that if American Pipe tolling is allowed in this case, the plaintiffs’ federal claims were timely filed. Because no court ever denied the motion for class certification in the Sanford action, we affirm the district court’s conclusion that the plaintiffs’ federal claims were timely filed. Vertrue, 719 F.3d at 479-80 (footnotes omitted). Unlike Vertrue, the Schilling plaintiffs obtained certification as a class action, an adverse ruling on the merits was entered against the certified class, a motion to amend class certification was denied, and then absent class members (represented by the same attorneys) brought a new action seeking class relief. These are precisely the type of “repetitive and indefinite class action lawsuits addressing the same claims” referenced in Vertrue that warrant denial of American Pipe tolling. The filing of the Schilling action February 14, 2008 may have temporarily suspended running of the statute of limitations on the absent class members’ individual claims under the American Pipe tolling doctrine, but such tolling did not suspend the running of the limitations period for subsequent class actions such as this new Cedillo suit. If Plaintiffs’ tolling argument were accepted, it would necessarily mean that absent class members (or their class counsel)
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disappointed with a liability determination in an earlier, certified class action, could file
repetitive actions while arguing that the clock for class claims was not running during the
pendency of the earlier-filed actions. Such a result would permit putative class members to
“piggy-back one class action onto another and thus toll the statute of limitations indefinitely,” a
result inconsistent with the principle of finality in litigation, the judicial economy envisioned by
Rule 23, and hardly envisioned by the Supreme Court’s American Pipe decisions. Korwek, 827
F.2d at 878. It would also signal to class counsel a new era of “hedging their bets,” namely that
an overbroad class definition in the first action—to exploit early, large settlements even if
liability is thin5—is the best strategy because if the action is ultimately dismissed after a broad-
based class is certified, those same attorneys can recruit new claimants and propose a more
narrowly defined class,6 a no-risk gamble that will be repeated over and over again if class
claims are tolled.
As recognized by Andrews and more recently in Vertrue, the purpose of American Pipe
tolling is to give meaning to the procedure and judicial efficiencies of class actions under Rule
23; it would make little sense and be unfair to run the limitations period on the individual claims
5 The decision to certify a class necessarily “places pressure on the defendant to settle even unmeritorious claims.” Shady Grove Orthopedic Associates v. Allstate Ins., 130 S.Ct. 1431, 1465 n. 3 (2010) (Ginsburg, J., dissenting). See also Coopers & Lybrand v. Livesay, 437 U.S. 463, 476 (1978) (“Certification of a large class may so increase the defendant’s potential damages liability and litigation costs that he may find it economically prudent to settle and to abandon a meritorious defense.”). 6 Justice Powell’s concurring opinion in Crown stated that “[w]hen thus notified, the defendant normally is not prejudiced by tolling of the statute of limitations. It is important to make certain, however, that American Pipe is not abused by the assertion of claims that differ from those raised in the original class suit.” Crown, 462 U.S. at 355, 103 S.Ct. 2392 (Powell, concurring). This Cedillo action presents class claims that focus on transports for periods of 59 to 67 hours, 67 to 95 hours, and above 95 hours, Complaint at ¶¶ 20-21, 47, which differs substantively from the class claims in Schilling set at the lower 24-hour threshold. See Hoptowit v. Ray, 682 F.2d 1237, 1258 (9th Cir. 1982) (in evaluating challenges to conditions of confinement, court may consider the length of time the prisoners must go without basic human needs). But see Infra, n. 9 (cases discussing non-viability of lengthy prisoner transport claims).
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of absent class members during the pendency of an original class action because such claimants have relied to their detriment on class representatives to prosecute their claims. Crown, 462 U.S. at 350 (“unless the statute of limitations was tolled by the filing of the class action, class members would not be able to rely on the existence of the suit to protect their rights”). A denial of class certification in an original action, or a liability determination adverse to the certified class but with individual mistreatment claims exempted from its scope, should essentially cut such disappointed class members loose to file their own individual actions, with the time period consumed in the prior action—measured from commencement of the original class action until the adverse class ruling—not counted against them when pursuing their individual claims. 7 Madani v. Shell Oil, 2008 WL 7856015, *2 (C.D. Cal. 2008) (equitable tolling not applicable to save subsequent class action where dismissal of the earlier action “resulted precisely from an adverse decision on the merits of the claim”), aff’d, 357 Fed. Appx. 158 (9th Cir. 2009), cert. denied, 130 S.Ct. 3477 (2010).
And this is essentially what occurred in the prior Schilling action, where a court-approved “Class Notice” was published through the Prison Legal News to all absent class members following the summary judgment ruling and the denial of the motion to amend class certification, advising them to file “your own action” if such putative members wished to enforce their rights post-Schilling. Ex. 9, December 12, 2012 Order Approving Plan to Provide Class Notice (“The effect of these orders is to restart the clock ticking on the statute of limitations applicable to
7 The individual Plaintiffs in Cedillo are asserting Section 1983 claims arising from their confinement in TransCor’s vehicles for periods in excess of 59 hours (Complaint at ¶¶ 20, 47); this higher hourly threshold is why their individual claims are outside the scope of the Schilling court’s summary judgment order. Ex. 6 at 15 (“To be clear, the Court does not find that the conditions alleged, if imposed for periods exceeding 24 hours or if imposed in different manners or with specific injuries, could not constitute unconstitutional deprivations to individual prisoners. As a class–wide matter, however, and on the record presented, the Court does not find that plaintiffs have established or can establish a constitutional violation.”).
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claims of persons who had been in the originally certified class. Those claims may be barred by
the mere passage of time, unless you take immediate action to preserve your rights by filing your
own action in court.”).
But an untimely, successive class action asserting class claims that could have been, but
were not, advanced in Schilling does not further such principles of judicial economy for the
courts or detrimental reliance for individual claimants, but effectively represents a “try-again”
by class counsel. As emphasized by the Northern District of California judge who denied the
Schilling plaintiffs’ motion to amend class certification after they suffered an adverse liability
ruling that defeated all class claims: “Plaintiffs made a strategic decision to seek class-wide relief
for one class of all inmates transported for 24 hours or more. The Court is wary of allowing
amendment at this juncture simply because plaintiffs’ strategy did not work.” Ex. 7 at 4.
Having adopted an aggressive strategy of defining the proposed class in Schilling broadly
at the 24-hour mark, to enable a class of more than 16,000 inmate claimants that facilitated class counsel’s early damages claims in excess of $200 million,8 and having unsuccessfully sought to amend the class certification in Schilling to include more narrowly defined subclasses, 9 the
8 In their Joint Case Mgt. Statement in Schilling, plaintiffs projected damages as follows: “Assuming TransCor transports 30,000 prisoners per year, and that each class member is entitled to $10,000 for each time he or she was transported by TransCor, then plaintiffs compute the class damage claim to be in excess of $600,000,000.00. Using this formula, adjusted for the number of potential class members after initial discovery, plaintiffs compute the class damage claim to be $223,670,000.00.” Ex. 3, Joint Case Mgt. Statement at § 11. 9 Although Plaintiffs’ 59-hour, 67-hour, and 96-hour subclasses in this case are more narrowly defined than in Schilling, precedent makes it unlikely that any individual claims will be able to survive summary judgment. See generally Myers v. TransCor, 2010 WL 3619831, at *9 (M.D.Tenn. 2010) (“Even if the Court takes as true the allegations that…the inmates being transported were fed infrequently and had difficulty eating and drinking because of the manner of being restrained, and that the inmates being transported were given infrequent bathroom breaks, these allegations simply fail to evidence the type of living conditions which are so extreme as to violate contemporary standards of decency and, thus, the objective component of the Eighth Amendment claim has not been satisfied.”); Waller v. TransCor, No. 3:07-0171, 2007
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American Pipe tolling doctrine should not be available to enable the postponed pursuit of class
relief, rendering the class claims untimely under either Tennessee’s one-year period, or even
California’s two-year period. Even looking solely at the most recent transport involving Plaintiff
and New Jersey resident Craig Arno, his class claims in this new Cedillo action were not filed for
more than five years and five months after they accrued when he was extradited from Texas to
New Jersey in November of 2007.10 Without tolling available under American Pipe, the class
claims and allegations in the Complaint should be stricken and/or dismissed.
B. RES JUDICATA BARS THE NEW CLASS CLAIMS THAT WERE OR COULD HAVE BEEEN BROUGHT IN SCHILLING.
Unlike the parties in most of the American Pipe tolling cases, the eight Plaintiffs here
were members of a certified class, having never opted out following publication of the Class
Notice. Ex. 5. Thus, even if this Court were to conclude that tolling should apply to suspend the
limitations period on class claims, such claims are precluded by the doctrine of res judicata
because they were either raised, or could have been raised, in the Schilling litigation. Having
never excluded themselves from the certified class in Schilling, Plaintiffs here—all of whom
WL 3023827, *3 (M.D. Tenn. 2007) (“Here, the plaintiff was made to endure a four day ride before reaching his final destination. He was not mistreated in violation of the Eighth Amendment simply because the defendants failed to drive him directly from Arkansas to Huntsville, Texas.”), citing Zanzucchi v. Wynberg, No. 90-15381, 1991 WL 83937 (9th Cir. Nov. 21, 1990) (prisoner was transported on a bus for 18 days with his hands and ankles restrained); Barker v. Fugazzi, 18 Fed. Appx. 663 (9th Cir. 2001) (inmate who “endured discomforts and irritations” on 46-hour bus ride from Houston, TX to Pendleton, Oregon, and complained “his restraints were too tight” failed to satisfy objective and subjective elements); Juliano v. Camden County Dep’t of Corrections, Civ. No. 06-1110 (FLW), 2006 WL 1210845 (D.N.J. May 3, 2006) (prisoner was transported for 10 days on a bus cross country while being shackled in the manner described by the instant plaintiff); and Jensen v. Jorgenson, Civ. No. 03-4200, 2005 WL 2412379 (D.S.D. Sept. 29, 2005) (prisoner was held in restraints and driven in a van for 14 days). 10 As found by Judge Illston in Schilling, “[a]t the end of 2008, TransCor stopped Extradition Services to focus instead on local transports” and Special Operations, “mass-transit services[] directly from one location to another…Some of these Special Operations trips last under 24 hours and some last 31 - 36 hours.” Ex. 6 at 4.
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were members of the Schilling class—are precluded from bringing class claims under Supreme Court precedent.
In Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867 (1984), the Supreme Court considered the question of whether a judgment in a class action determining that an employer did not engage in a general pattern or practice of racial discrimination against the certified class of employees precluded a class member from maintaining a subsequent civil action alleging an individual claim of racial discrimination against the employer. Id. at 869. While recognizing the general doctrine of claim preclusion, the Court emphasized the difference between establishing that an employer had engaged in a pattern or practice of discrimination and establishing that an employer had discriminated against an individual employee. Id. at 874, 876. The court held that individual plaintiffs in a subsequent action were bound under principles of res judicata by the prior adverse class action judgment, but that the preclusive effect merely barred “the class members from bringing another class action against the Bank alleging a pattern or practice of discrimination for the relevant time period....” Id. at 880. The doctrine of res judicata did not, however, bar the plaintiffs from bringing their individual claims (alleging individual mistreatment) against the employer in separate actions. Id. “Pursuant to the same general principle that claim preclusion does not apply to matters that could not be advanced in a prior action, individual actions remain available to pursue any other questions that were expressly excluded from the class action.” 18A Charles Alan Wright, Arthur R. Miller & Edward R. Cooper, Federal Practice and Procedure § 4455 (3d Ed. 1998). Here, it is undisputed that the Schilling plaintiffs could have advanced divided subclasses similar to those proposed here (59, 67 and 95+ hour transports) in the prior action.
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This Court must apply federal common law in determining the preclusive effect of the Schilling class judgment. Taylor v. Sturgell, 128 S.Ct. 2161, 2171 (“[t]he preclusive effect of a federal-court judgment is determined by federal common law”). Although the eight Plaintiffs here were not named parties in Schilling, they were “parties by representation” because of the certified status of Schilling and are bound by the class judgment from asserting new legal theories applicable to the class that could have been asserted and addressed in the prior action. As comment e to the Restatement (Second) of Judgments § 41 states: “[w]hen…a class action is authorized under rules such as Rule 23 of the Federal Rules of Civil Procedure, persons within the class are bound by a judgment for or against the representative.” The Supreme Court has made this point abundantly clear in recent decisions. See Smith v. Bayer Corp., 131 S.Ct. 2368, 2380 (2011) (“So in the absence of a certification under that Rule, the precondition for binding [a proposed class member] was not met. Neither a proposed class action nor a rejected class action may bind nonparties. What does have this effect is a class action approved under Rule 23.”); and Taylor, 553 U.S. at 894 (nonparties can be bound in “properly conducted class actions”). The Sixth Circuit has also underscored this point. Meridia v. Product Liability Litigation, 447 F.3d 861, 868-69 (6th Cir. 2006) (“Yet Plaintiffs offer no authority for the proposition that where, as here, hundreds of named litigants and certified classes are consolidated by an MDL Panel, a party may limit the effect of a consolidated order merely by filing a new complaint…it is clear that the district court intended to bind all litigants within its purview, i.e., any named litigant or previously certified class before it.”).
“When a valid and final judgment rendered in an action extinguishes the plaintiff’s claim pursuant to the rules of merger or bar..., the claim extinguished includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of
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connected transactions, out of which the action arose. Id. (quoting Restatement (Second) of Judgments § 24(1) (1982)). The class claims brought in Schilling clearly arose from the same nucleus of fact—extradition trips from 2006-08—that encompassed the 22,000 or more inmate trips of which the eight journeys of the Plaintiffs here were but a small subset. The fact that class counsel in Schilling structured the class claims to include any inmate who was transported for a period in excess of 24 hours, and that this broad class definition differs from the more narrowly framed subclasses proposed in this new action, 11 is inconsequential to the doctrine of res judicata in barring the new class claims. The Schilling plaintiffs, who obtained class certification by persuading the Northern District of California that they would adequately represent the class, strategically structured that lawsuit to leverage settlement over liability prospects—believing the case would settle quickly after certification—but the entry of an unfavorable judgment now precludes those certified class members from bringing new class claims that could have been brought by their class representatives in the earlier Schilling matter. Becherer v. Merrill Lynch, Pierce, Fenner, and Smith, Inc., 193 F.3d 415, 434 (6th Cir. 1999) (noting that “the class representative assumes a fiduciary relationship” to the class).
Claim preclusion applies not only to the precise legal theory presented in the previous litigation, but to “all legal theories and claims arising out of the same operative nucleus of fact.” Adams v. Southern Farm Bureau Life Insurance Co., 493 F.3d 1276, 1289 (11th Cir. 2007). This principle applies with equal force to class litigation where a class member is attempting to put a new legal twist on factual matters previously litigated. Los Angeles Branch NAACP v. Los Angeles Unified School Dist., 750 F.2d 731 (9th Cir. 1984) (“But the doctrine of res judicata, in
11 While the certified class in Schilling encompassed more than 16,000 claimants by virtue of setting the hourly threshold at 24 hours, Plaintiffs in this action have proposed three subclasses involving inmates transported for 59 to 67 hours, 67 to 95 hours, and above 95 hours. Complaint at ¶¶ 2, 20-21, 47 and 49.
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California as elsewhere, not only bars the maintenance of the identical cause of action in a subsequent suit by the same parties. It also bars the maintenance of a subsequent action on any part of the original cause of action, even if that part was not litigated in the prior action.”) (emphasis in original); and Bell v. Board of Education, 683 F.2d 963, 966 (6th Cir.1982) (“were we to apply a contrary principle rejecting collateral estoppel in school desegregation cases, we would open up for relitigation all school desegregation judgments in de facto school cases…Rights and duties in desegregation cases previously litigated and established would never become final. They would always be subject to collateral attack. Desegregation judgments, like tickets to the theater, would be good for today’s show only.”).
The eight Plaintiffs here seek class relief on behalf of the same inmates who were members of the certified Schilling class, and were similarly transported on extradition trips of various lengths in 2006-07. These 2006-07 extradition trips are the “transactions” or factual events complained of. “Transaction” is defined as a “common nucleus of operative facts.” Restatement (Second) of Judgments § 24 cmt. b (1982)). “That a number of different legal theories casting liability on an actor may apply to a given episode does not create multiple transactions and hence multiple claims. This remains true although the several legal theories ... would emphasize different elements of the facts.” Id. (quoting Restatement (Second) of Judgments § 24 cmt. c). As Wright, Miller, and Cooper have observed:
If class members could sit back and see whether the court awards them a desirable judgment and then attack the judgment collaterally if unsatisfied with the award they receive, the purpose of res judicata would be undermined . . . . Due process entitles class members to notice and adequate representation. It does not entitle them to continue to challenge the defendant’s conduct until they are ultimately successful. 18A Wright, § 4455 at 477 (quoting Quigley v. Braniff Airways, Inc., 85 F.R.D. 74, 76-77 (N.D. Tex. 1979).
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Under Cooper and federal preclusion law, the class claims brought in this action are barred by res judicata because such Plaintiffs were members of the certified Schilling class, were adequately represented, and suffered a decision on the merits that merged into the final judgment dismissing the action with prejudice. Any and all class claims that could have been brought in the prior action cannot be asserted in this new action founded upon the same nucleus of facts.
C. TENNESSEE’S ONE-YEAR STATUTE OF LIMITATIONS REQUIRES DISMISSAL OF CERTAIN PLAINTIFFS’ INDIVIDUAL CLAIMS.
Although the American Pipe tolling doctrine was designed to rescue the individual claims of class members “in the event that class certification is denied,” Crown, Cork & Seal Co., 462 U.S. at 346–47, TransCor does not dispute for purposes of this Motion that the granting of class certification coupled with a liability ruling adverse to the class in Schilling warranted a limited period of tolling for the individual claims of class members to effectuate the purposes of Rule 23. Crown, 462 U.S. at 349-50 (discussing the holding in American Pipe, and the purpose of promoting the efficiency of the class action by allowing tolling). Three key questions are presented: (1) What is the applicable statute of limitations, and does it apply to all or some of the individual Plaintiffs? (2) How much time remained on the limitations period for individual claimants when the Schilling action was filed February 14, 2008; and (3) When did the applicable limitations period resume running?
1. Tenneesee’s One-Year Period Should Apply. The statute of limitations for civil rights claims in Tennessee is one year.12 Tenn. Code Ann. § 28-3-104; see also Kessler v. Bd. of Regents, 738 F.2d 751, 754 (6th Cir. 1984) (“It is undisputed...that a one-year statute of limitations applies to civil rights cases arising in
12 Congress has never legislated a statute of limitations period for Section 1983 actions, and the courts, pursuant to 42 U.S.C. § 1988, look to analogous state statutes. Wilson v. Garcia, 471 U.S. 261 (1985); and Owens v. Okure, 488 U.S. 235 (1989).
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Tennessee.”). This one-year statute of limitations applies to § 1983 claims brought in Tennessee. See Berndt v. State of Tenn., 796 F.2d 879, 883 (6th Cir. 1986). While this action involves multiple Plaintiffs alleging mistreatment by TransCor over a variety of extradition trips involving different routes of travel through different states, the procedural nature of a statute of limitations requires the application of the one-year period in Tenn. Code Ann. § 28-3-104.
That Tennessee’s one-year period applies to this multi-state, civil rights action involving multiple plaintiffs is illustrated by an opinion from the Eastern District of Tennessee, Pratt v. Greyhound Lines, Inc. 2010 WL 703109 (E.D.Tenn. 2010). Pratt involved the personal injury claims of a husband and wife who were passengers on a bus en route from Chattanooga, Tennessee, to Denver, Colorado. When the bus was passing through Texas, it was involved in an accident, but the plaintiffs waited until 22 months after the accident to file suit in the Eastern District of Tennessee. 2010 WL 703109, at *1. After noting that Tennessee law classifies the statute of limitations as a procedural issue, the Pratt court held that “a federal court sitting in Tennessee applies the Tennessee statute of limitations” and dismissed the action as time-barred by Tennessee’s one-year limitations period. Id., citing Elec. Power Bd. of Chattanooga v. Monsanto, 879 F.2d 1368, 1375 (6th Cir.1989) (“[S]tatutes of limitations are procedural rules and thus the statutes of limitations of the forum state-Tennessee-apply to the claims....”).
Application of the Tennessee limitations period for civil rights claims is not affected by the fact that venue was transferred to this District from the Northern District of California for convenience reasons under 28 U.S.C. 1404(a), as this action is a federal question case not subject to the rule ordinarily applied to diversity cases in Van Dusen v. Barrack, 376 U.S. 612, 639 (1964) (when a diversity case is transferred, “the transferee district court must be obligated to
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apply the state law that would have been applied if there had been no change of venue.”). As a well-known treatise on federal practice emphasizes:
Following a Section 1404(a) convenience transfer in a federal question case, the transferee court ordinarily should apply the law as interpreted by its own circuit, and should not be required to apply the precedent of the transferor circuit…the better view…is that the transferee court is free to apply the law of its own circuit….federal law, unlike state law, presumptively is uniform and therefore Van Dusen’s goal of preventing the defendant from using the ‘accident’ of diversity to achieve a different result than he or she would obtain in state court is irrelevant. This result is not changed by the courts’ recognition that although federal law is ‘supposed’ to be uniform, it in fact often is not. 17 Moore’s Federal Practice, 111.20[2][a] at 147-149 (2d. ed. 2002) (emphasis added). See also EEOC v. Northwest Airlines, Inc., 188 F.3d 695, 700 (6th Cir. 1999) (“Although district courts must apply the law of the state of the transferor district in diversity actions transferred under 28 U.S.C. § 1404(a) (convenience transfers), the prevailing view for federal questions is that ‘the venue of appeal determines choice of law on federal issues.’ Federal law is presumed to be uniform, whether or not it is in fact.”) (citations omitted); Menowitz v. Brown, 991 F.2d 36, 40 (2d Cir. 1993); and In re Korean Airlines Disaster, 829 F.2d 1171, 1177 (D.C.Cir. 1987) (“the Erie policies served by the Van Dusen decision do not figure in the calculus when the law to be applied is federal not state”).13 Thus, Tennessee’s one-year limitations period, expressly held by the Sixth Circuit to govern Section 1983 actions, should apply here. Kessler, 738 F.2d at 754 (“It is undisputed...that a one-year statute of limitations applies to civil rights cases arising in Tennessee.”). Uniform application of federal law (42 U.S.C. § 1988) applicable to the timeliness of Section 1983 actions litigated in the Middle District of Tennessee would also spare the parties
13 Regardless of whether courts apply a state limitations period to a federal claim, “the choice of a limitations period for a federal cause of action is itself a question of federal law.” DelCostello v. International Bhd. of Teamsters, 462 U.S. 151, 159 n. 13 (1983).
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and the Court from evaluating a patchwork of limitations periods potentially applicable to the various Plaintiffs and their interstate trips.
Alternatively, even if this Court believed it was required under Van Dusen to apply the law of California, or California’s choice of law rules in deciding which state’s limitations period should apply, a federal court sitting in California would be required to apply its borrowing statute to dismiss the claims of at least some of the Plaintiffs. Calif. Code § 361 provides: “When a cause of action has arisen in another State, or in a foreign country, and by the laws thereof an action thereon cannot there be maintained against a person by reason of the lapse of time, an action thereon shall not be maintained against him in this State, except in favor of one who has been a citizen of this State, and who has held the cause of action from the time it accrued.” See also Williams v. Fulton County Jail, 575 F.Supp. 306 (N.D.Ill. 1983) (applying Illinois borrowing statute to inmate claim arising in Georgia).
That Plaintiffs’ cause(s) of action have “arisen” in Tennessee is revealed by the nature of Plaintiffs’ allegations against TransCor and decisions made at its Nashville, Tennessee headquarters. Plaintiffs and their counsel have made the theme of this case and Schilling about the policies of TransCor, Compl. [ECF 1] at ¶¶ 23-28, 46 & 50, and the trip-scheduling decisions made by TransCor officials in Nashville, id. at ¶¶ 29, 31, 33, 35, 37, 39, 41 and 43. Indeed, TransCor is the only defendant—none of the extradition specialists or transportation crew members is a party—which will require Plaintiffs to prove TransCor’s policies or customs were the “moving force” behind any alleged constitutional violations. Monell v. Department of Social Services of N.Y., 436 U.S. 658 (1978); Garner v. Memphis Police Dept., 8 F.3d 358, 364 (6th Cir. 1993). The lawsuit, like the predecessor Schilling action, is not about whether a TransCor driver ran a red light or took a wrong turn in California, Florida or Kentucky, but rather a civil
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rights challenge to TransCor’s legitimate policy of keeping inmates restrained for extended periods (with access to bathroom breaks, meal stops and flat-panel TV movies while en route), and scheduling routes according to a regional hub and spoke system designed in Nashville, with all route-scheduling and trip decisions made by TransCor officials in Nashville. Ex. 5, Order at 1, 3-7, 12-15.
Thus, although the harm alleged by the individual Plaintiffs may have been experienced in a variety of states according to the route of each inmate’s extradition trip, the underlying conduct of TransCor challenged in this action focuses directly on the policies and trip-scheduling decisions made in Nashville, Tennessee.14 Accordingly, even if California’s substantive law and choice of law rules applied, its borrowing statute requires the application of Tennessee’s oneyear period because Plaintiffs’ allegations demonstrate that the claims “arose” from TransCor’s Tennessee-based policies, training, trip-scheduling and other corporate decisions.
2. The Claims of Cedillo, Houston, Wright and Greenmeier for Trips in 2006 Were Time-Barred Before Schilling Was Filed.
At the time the Schilling matter was filed on February 14, 2008, more than one year had already elapsed on the claims of Plaintiffs Cedillo, Houston, Wright and Greenmeier. Thus, their claims are untimely under Tenn. Code Ann. § 28-3-104, and such Plaintiffs should be dismissed as parties.
3. Plaintiffs Roussell and Cleaves Should Be Dismissed Because the Statute of Limitations Resumed Running No Later Than October 12, 2012.
14 Significantly, 6 of the 8 Plaintiffs spent at least one night at the Christian County Jail in Hopkinsville, Kentucky—a regional “hub” that is also the focus of Plaintiffs’ criticism because the consolidation of trips in the East and Southeast via this hub operated to prolong the extradition trips. Kentucky, like Tennessee, has a one-year period for civil rights actions. Collard v. Kentucky Bd of Nursing, 896 F.2d 179 (6th Cir. 1990).
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Case law and logic compel the conclusion that a limitations period, once tolled, should begin running as soon as absent class members in the first case reasonably should know that they can no longer depend on the class action to protect their rights. Crown, 462 U.S. at 354 (“Once the statute of limitations has been tolled, it remains tolled for all members of the putative class until class certification is denied.”) (emphasis added).15 In Schilling, such date occurred either when the adverse class summary judgment was entered on August 8, 2012 or, at the latest, on October 11, 2012 when the Schilling plaintiffs’ motion to amend class certification was denied. And this is precisely what the Class Notice acknowledged referred to these rulings and stated: “The effect of these orders is to restart the clock ticking on the statute of limitations applicable to claims of persons who had been in the originally certified class…If this class action was filed before your right to file a claim expired, the time to file was stayed or tolled until the court’s recent actions when the clock started ticking again.” Ex. 9.
Assuming, arguendo, that tolling lasted from February 14, 2008 (when the Schilling complaint was filed) to the latest date of October 11, 2012 (denial of motion to amend class certification), the limitations period ran for another 5 months and 28 days until Plaintiffs filed the Cedillo complaint on April 8, 2013. When such period is added to the time period that already lapsed before Schilling was commenced, the claim of Roussell is also time-barred (in addition to
15 The Crown court pinpointed the resumption date as the date on which class certification was denied despite the fact that, following the denial, the named plaintiffs “later settled” their individual claims and the case was dismissed with prejudice. 462 U.S. at 348, n.1. This holding therefore eliminates any basis for Plaintiffs’ assertion that the statute was tolled “until April 4, 2013.” Complaint at ¶ 22. April 4, 2013 was the date on which the Schilling case was closed (Ex. 13), not the date when the court effectively denied class relief by entering summary judgment against the class (Ex. 6, August 8, 2012 Order) or, at the very latest, denying the Schilling plaintiffs’ motion to amend class certification (Ex. 8, October 12, 2012 Order).
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those of Cedillo, Houston, Wright and Greenemeier),16 leaving only Plaintiffs Arno, Hugall and possibly Cleaves. Plaintiff Cleaves, however, should also be dismissed if the Court agrees with TransCor that tolling ended on August 8, 2012 when the Northern District of California entered summary judgment against the certified class, because that date represents the day on which all class relief was denied, resulting in an 8-month period added to Cleaves’ pre-Schilling period of 5 months and 4 days, which exceeds the one-year limitations period.17
Accordingly, the limited relief from tolling requires dismissal of Roussell and Cleaves as plaintiffs, with only the individual claims of Plaintiffs Arno and Hugall surviving this statute of limitations challenge based on the application of Tenn. Code Ann. § 28-3-104. Alternatively, even if California’s two-year statute of limitations were applied (Calif. Code of Civil Procedure § 335.1), the individual claims of Plaintiffs Houston, Wright and Greenemeier should be dismissed. III. CONCLUSION.
The equitable tolling doctrine from American Pipe and its progeny must be limited to situations that serve its purposes of furthering the judicial economy inherent in the class action procedure and preserving the individual claims of class members who “rely on the existence of the suit to protect their rights.” Crown, 462 U.S. at 350. But a successive class action filed more than 5 years after any claims accrued in 2006-07, attempting to piggyback off an earlier, certified class action that resulted in a summary judgment adverse to the class, is an abusive, “try-again”
16 Because 5 months and 27 days elapsed between October 12, 2012 and the filing of this new action, the individual claims of Plaintiffs Houston and Wright would be untimely even if California’s two-year statute of limitations were applied. Infra at 6. 17 Assuming the Court determines any tolling expired with the entry of the adverse class judgment on August 8, 2012, the individual claims of Plaintiffs Houston, Wright, and Greenemeier would be untimely even if California’s two-year statute of limitations were applied because an additional 8 months would be added to the time periods associated with their claims. Infra at 6.
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practice that falls outside the carefully crafted boundaries of American Pipe. All class claims

should be dismissed under Andrews, or the res judicata doctrine under Cooper, and the

individual claims of all Plaintiffs except Arno and Hugall dismissed under Tennessee’s one-year

statute of limitations. Alternatively and at a minimum, the individual claims of Plaintiffs

Houston, Wright and Greenemeier should be dismissed should this Court apply California’s two-

year statute of limitations.

Dated: October 31, 2013

Respectfully submitted,

/s/ Daniel P. Struck Daniel P. Struck, AZ012377 (Admitted Pro Hac Vice) David C. Lewis, AZ012791 (Admitted Pro Hac Vice) Struck Wieneke & Love, P.L.C. 3100 West Ray Road, Suite 300 Chandler, Arizona 85226 Ph: (480) 420-1660 Fax: (480) 420-1696 dstruck@swlfirm.com dlewis@swlfirm.com
Joseph F. Welborn, III (#15076) Erin Palmer Polly (#22221) Lauren Patten Coble (#27457) Walker, Tipps & Malone PLC 2300 One Nashville Place 150 Fourth Avenue North Nashville, Tennessee 37219 Ph: (615) 313-6017 Fax: (615) 313-6001 jwelborn@walkertipps.com
Counsel for Defendant TransCor America, LLC

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CERTIFICATE OF SERVICE
I certify that a true and exact copy of the foregoing Memorandum of Points and Authorities in Support of Defendant TransCor’s Motion for Judgment on the Pleadings has been served upon Filing Users via the electronic filing system and on other counsel via U. S. Mail, first-class postage prepaid, this October 31, 2013, on the following:
Andrew Charles Schwartz CASPER MEADOWS SCHWARTZ & COOK 2121 N. California Boulevard Suite 1020 Walnut Creek, CA 94596 (925) 947-1147 Fax: (925) 947-1131 schwartz@cmslaw.com
Douglas S. Johnston, Jr., Esq. BARRETT JOHNSTON, LLC. 217 Second Avenue North Nashville, TN 37201 (615) 244-2202 Fax: (615) 252-3798 djohnston@barrettjohnston.com
Karen Leigh Snell 102 Buena Vista Terrace San Francisco, CA 94117 (415) 225-7592 Fax: (415) 487-0748 ksnell@snell-law.com
Mark E. Merin LAW OFFICE OF MARK E. MERIN 1010 F Street Suite 300 Sacramento, CA 95814 (916) 443-6911 Fax: (916) 447-8336 mark@markmerin.com
Daniel P. Struck STRUCK WIENEKE & LOVE, P.L.C. 3100 W. Ray Road, Suite 300 Chandler, AZ 85226 (480) 420-1600 Fax: (480) 420-1696 dstruck@swlfirm.com
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Jason W. Callen WALKER TIPPS & MALONE, PLC 150 4th Avenue North, Suite 2300 Nashville, TN 37219 (615) 313-6007 Fax: (615) 313-6001 jcallen@walkertipps.com
Natalie P. Vance KLINEDINST PC 801 K Street Suite 2100 Sacramento, CA 95814 (916) 444-7573 Fax: (916) 444-7544 nvance@klinedinstlaw.com
David C. Lewis STRUCK WIENEKE & LOVE, P.L.C. 3100 W. Ray Road, Suite 300 Chandler, AZ 85226 (480) 420-1600 Fax: (480) 420-1696 dlewis@swlfirm.com
Gregory Todd Fayard KLINEDINST PC 801 K Street Suite 2100 Sacramento, CA 95814 (916) 444-7573 Fax: (916) 444-7544 gfayard@klinedinstlaw.com
Joseph F. Welborn, III WALKER TIPPS & MALONE, PLC 150 4th Avenue North, Suite 2300 Nashville, TN 37219 (615) 313-6000 jwelborn@walkertipps.com
/s/ Carol S. Madden
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 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

RUBEN CEDILLO, et al., Plaintiff,
v. TRANSCOR AMERICA, LLC, et al.,
Defendants.

) ) ) ) No. 3:13-cv-00869 ) ) Judge Sharp ) ) ) )

MEMORANDUM Before the Court is Defendant TransCor America, LLC’s (“TransCor” or “Defendant”) Motion for Judgment on the Pleadings. (Docket No. 54). Plaintiffs, inmates transported by TransCor, filed a Response in Opposition to the Motion (Docket No. 57), to which Defendant replied (Docket No. 59). For the reasons set forth below, Defendant’s Motion will be granted.

I. SUMMARY OF THE FACTS

Plaintiffs in this class action case are inmates transported by Defendant for a period of more than 59 continuous hours on or after February 14, 2006, and who were members of the class certified in Schilling v. TransCor America, LLC, 2010 WL 583972 (N.D. Cal. Feb. 16, 2010). The proposed class is estimated to include approximately 4,900 persons. (Docket No. 1 at 12). The Complaint lists subclasses of inmates transported between 59 and 67 continuous hours (represented by named Plaintiffs Ruben Cedillo, Alonzo Cleaves, and Terry Houston), between 67 and 95 continuous hours (represented by named Plaintiffs Justin Wright, John Greenmeier, and John Roussel), and more than 95 continuous hours (represented by named

1

Plaintiffs Craig Arno and Leonard Hugall), as well as subclasses of inmates “whose claims are
timely under California law, including the tolling provisions of California Code of Civil
Procedure sections 352 and 352.1.” (Id.).
Defendant is TransCor, a Tennessee corporation and wholly owned subsidiary of Corrections Corporation of America (“CCA”).1 Between 1990 and late 2008, TransCor
contracted with state and federal law enforcement agencies to facilitate prisoner transfers and
extradition for prisoners arrested in one jurisdiction but legally sought in another. (Docket No.
58-4 at 9). TransCor ceased providing extradition transport services in October 2008 and, since
then, has reoriented its business model for shorter-distance transfers focused on hub locations
(for local court appearances and medical transfers) and between CCA facilities. (Docket No. 58-
4 at 9).
As noted above, this case follows a prior class action, Schilling v. TransCor America,
LLC (hereinafter “Schilling”). There, the following class was certified:
All pretrial detainees and prisoners who were transported by TransCor America LLC, its agents and/or employees between February 14, 2006 and the present, and who were forced to remain in restraints in the transport vehicle for more than 24 hours without being allowed to sleep overnight in a bed. The class includes pretrial detainees and prisoners who were removed from one transport vehicle and placed directly onto another, without being housed overnight, whose combined trip lasted more than 24 hours. The class only includes those pretrial detainees and prisoners who were transported by TransCor on behalf of a state agency, and does not include pretrial detainees and prisoners who were transported on behalf of a federal agency.
1 Plaintiffs also name as Defendants “Does 1 through 100,” who Plaintiffs refer to as “agents and/or employees of defendant TransCor” whose names and identities were unknown at the time of filing. (Docket No. 1 at 4).
2

Schilling, 2010 WL 583972, at *12 (Feb. 16, 2010).2
In a subsequent order, the Northern District of California certified the following claims for class treatment: “[P]laintiffs’ Fourth, Eighth and Fourteenth Amendment claims regarding the use of restraints, lack of overnight rest, lack of access to sanitation facilities and inadequate provision of food during transportation.” Schilling, 2012 WL 2792688, at *1 (N.D. Cal. July 9, 2012).
On August 8, 2012, the Schilling court granted Defendant’s motion for partial summary judgment, finding that “as a matter of law, the conditions of confinement challenged by plaintiffs – in the context of transportation of prisoners, over a period of 24 hours or more – did not, on a class-wide basis and without more, constitute unconstitutional deprivations under the Eight or Fourteenth Amendment.” 2012 WL 4859020, at *1 (N.D. Cal. Oct. 11, 2012). A month later, the court denied Plaintiffs’ motion to amend/correct the class certification order, which requested that the court “certify subclasses of plaintiffs ‘based on the number of days an inmate was continuously transported’ by defendants and to add four subclass representatives.” Id. The court emphasized that “there was a determination of no liability for the class as defined by the Court on plaintiffs’ request.” Id. (emphasis in original). Furthermore,
plaintiffs wholly failed to argue or provide evidence … that subclass differentiation might be appropriate … There was no evidence or expert opinion that the Court could rely on to, for example, find that a constitutional violation had been demonstrated for class members who were subject to the complained of conditions for other periods of time, such as two or more days. Id. The court concluded,
2 The Schilling court also certified a subclass under California’s Bane Act. See Schilling, 2010 WL 583972, at *12 (Feb. 16, 2010).
3

[t]he potential need to distinguish among subclasses should have been clear since the inception of this case. The fact that the impact of the conditions-of-confinement complained of changes over time is obvious; this is likely why plaintiffs suggested a class consisting of inmates subjected to these conditions for 24 hours, and not, for example, 18 or 20 hours. As defendants point out, plaintiffs have had discovery in their possession since 2009 showing the duration of the trips for each class member. Plaintiffs made a strategic decision to seek class-wide relief for one class of all inmates transported for 24 hours or more. The Court is wary of allowing amendment at this juncture simply because plaintiffs’ strategy did not work. Id. at *2. However, the court did note that “Defendants have admitted that the claims of
individuals who were continuously transported for more than 24 hours and one minute survive
the Court’s motion for summary judgment … Those individuals, therefore, are presumably free
to file an action on their own behalf or on behalf of a class of those similarly situated.” Id. at *2
n.6.
In January 2013, the class was notified of the summary judgment ruling by publication in
the Prison Legal News and the Parties reached a settlement. The Parties’ agreement
contemplated settlement with prejudice solely with respect to the named Plaintiffs’ claims,
however this distinction was not included with the Schilling court’s order dismissing the case
with prejudice on January 31. Plaintiffs assert that through no fault on their part, a stipulation
requesting the court amend its dismissal order to conform with the Parties’ settlement agreement
was not filed until April 1, 2013. The Schilling court granted this request on April 4.
On April 8, 2013, the current named Plaintiffs filed this class action Complaint in the
Northern District of California. (Docket No. 1). The court granted TransCor’s motion to
transfer venue to the Middle District of Tennessee, finding that while either venue was generally
proper, Tennessee was more convenient as the location of TransCor’s headquarters, non-party
4

witnesses, and relevant documents. (Docket No. 24). The case was transferred to this Court on August 29, 2013.
Plaintiffs’ Complaint reasserts the allegations initially set forth in Schilling, namely that Defendant TransCor maintained a “policy and practice to strip search all inmates and restrain them, regardless of their security classification, in handcuffs, waist or ‘belly’ chains, leg irons, interconnects, and black boxes.” (Docket No. 1 at 5-6). Plaintiffs were placed in TransCor’s transport vehicles, the interior of which was divided into steel cages, and made to remain there, without adequate bathroom access and no opportunity to wash their hands or shower. They were typically chained to each other in pairs or, when allowed to use the onboard chemical toilet, chained to a corrections officer, which made closing the bathroom door impossible. During transport, Plaintiffs were not given access to beds for overnight rest. In fact, Plaintiffs claim TransCor instructed inmates to remain upright during travel so they would not be injured in the event of an unexpected turn or stop of the transport vehicle. TransCor vehicles are not outfitted with seat belts or sleeping berths.
Extradition trips in the custody of TransCor generally deviated from a direct route due to utilization of a “‘hub and spoke system’ of inmate transportation that resulted in some inmates remaining in the transport vehicle for several days.” (Docket No. 57 at 4). This system “consolidated inmates located in certain regions on a single bus route (the spoke) by transporting them to hub locations in California, Texas, Kentucky and Florida.” (Docket No. 58-4 at 9).
The Complaint illustrates the effects of the hub and spoke system on inmate travel time through the experience of the named Plaintiffs. For instance, had the route been direct, Plaintiff Ruben Cedillo should have covered the 60 miles from the Claremont Custody Center in Coalinga, California, to Fresno County Jail in Fresno, California, in an hour and ten minutes.
5

However, Defendants’ route through sixteen California cities took 59.2 hours of continuous travel. During that time, Cedillo could not stretch his limbs or lay down. When the guards stopped for showers, he requested one as well. In response to his request, Plaintiffs claim, TransCor employees sprayed him with Lysol disinfectant. The Complaint alleges that Cedillo and other named Plaintiffs continue to experience lasting pain and injury from the conditions of their confinement and duration in TransCor custody.
Plaintiffs claim Defendant used excessive force against Plaintiffs and deprived Plaintiffs, and all those similarly situated, of “the minimal civilized measure of life’s necessities, including sleep, exercise, hygiene and medical care” in violation of their rights under the Fourth, Eighth, and Fourteenth Amendments to be free from unlawful conditions of confinement, the use of excessive force, and cruel and unusual punishment. (Docket No. 1 at 12-13).
II. APPLICATION OF LAW A Motion for Judgment on the Pleadings under Rule 12(c) of the Federal Rules of Civil Procedure “is appropriately granted ‘when no material issue of fact exists and the party is entitled to judgment as a matter of law.’” See Tucker v. Middleburg–Legacy Place, 539 F.3d 545, 549 (6th Cir. 2008). In making that determination, the Court utilizes the standards applied to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6). See Roth v. Guzman, 650 F.3d 603, 605 (6th Cir. 2011). Thus, “[f]or purposes of a motion for judgment on the pleadings, all well-pleaded material allegations of the pleadings of the opposing party must be taken as true, and the motion may be granted only if the moving party is nevertheless clearly entitled to judgment.” JP Morgan Chase Bank, N.A. v. Winget, 510 F.3d 577, 581 (6th Cir. 2007).
6

A. Plaintiffs’ Class Claims
The parties advance a number of arguments regarding the viability of Plaintiffs’ class claims, including arguments about class action tolling, judicial estoppel and waiver, and res judicata. Because the Court agrees with Defendant that res judicata ultimately bars Plaintiffs’ class claims in this case, the following discussion is limited to that topic.
The doctrine of res judicata is often used broadly to encompass both claim preclusion (res judicata) and issue preclusion (collateral estoppel). J.Z.G. Res., Inc. v. Shelby Ins. Co., 84 F.3d 211, 214 (6th Cir. 1996). Under claim preclusion, a final judgment on the merits bars any and all claims by the parties or their privies based on the same cause of action, as to every matter actually litigated, as well as every theory of recovery that could have been presented. Id. Under issue preclusion, once an issue actually is determined by a court of competent jurisdiction, that determination is conclusive in subsequent suits based on a different cause of action when used against any party to the prior litigation. Mont. v. United States, 440 U.S. 147, 152-54 (1979). Defendants contends that claim preclusion applies here and the Court agrees.
Because the initial case was filed in – and judgement rendered by – a federal court, “federal law determines the effects under the rules of res judicata.” RESTATEMENT (SECOND) OF JUDGMENTS § 87 (1982); see also Remus Joint Venture v. McAnally, 116 F.3d 180, 184 n. 5 (6th Cir. 1997). “‘[R]es judicata has four elements: (1) a final decision on the merits by a court of competent jurisdiction; (2) a subsequent action between the same parties or their privies; (3) an issue in the subsequent action which was litigated or which should have been litigated in the prior action; and (4) an identity of the causes of action.’” Rawe v. Liberty Mut. Fire Ins. Co., 462 F.3d 521, 528 (6th Cir. 2006) (citing Kane v. Magna Mixer Co., 71 F.3d 555, 560 (6th Cir. 1995)). The Court addresses each element in turn.
7

Final Adjudication on the Merits
The claims at issue here have been subject to a final judgment on the merits. The Schilling court granted Defendant’s motion for summary judgment on the class claims, and summary judgment constitutes a final judgment on the merits with a preclusive effect. Heike v. Cent. Michigan Univ. Bd. of Trustees, 573 F. App’x 476, 480 (6th Cir. 2014) (“The grant of summary judgment most certainly constitutes a final adjudication on the merits for purposes of claim preclusion.”) (citing Ohio Nat’l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir.1990)).
Plaintiffs argue that because the previous class definition forced the Schilling court to analyze transport periods of twenty-four hours and one minute, “[t]here was no ‘final decision on the merits’ of the claims of absentee class members such as Plaintiffs, who were transported for significantly longer than 24 hours and one minute.” (Docket No. 57 at 16). Plaintiffs emphasize that the Schilling court “explicitly reserved judgment on the question of whether the conditions alleged, if ‘imposed for periods exceeding 24 hours’ would constitute cruel and unusual punishment,” and concluded “it could not adjudicate any class members’ claims in excess of a ‘24-hour plus one minute period’ due to the class definition.” (Id. at 17).
These arguments are unavailing. The class definition may have forced the Schilling court to limit its analysis to the lowest common denominator, but the ultimate decision on summary judgment applied to the class at large.3 Such a judgment is final and binding on all members of
3 See Docket No. 55-6 at 1 (granting summary judgment “as to Plaintiffs’ class claims”), and at 8 (“As a class-wide matter, however, and on the record presented, the Court does not find that plaintiffs have established or can establish a constitutional violation.”). See also Docket No. 58-3 at 12, ¶ 51.v (The
8

the class: “Absent unnamed members of a class are bound by a judgment rendered in a properly certified class action.” Chandler v. Corr. Corp. of Am., 41 F. App’x 836, 837 (6th Cir. 2002) (citing Shults v. Champion Int’l Corp., 35 F.3d 1056, 1058 (6th Cir.1994)). While those class members who endured significantly longer transport periods have been disadvantaged by the Schilling Plaintiffs’ decision to lump them in with those who suffered shorter transports, they are nonetheless bound by the adverse judgment.
Same Parties or Their Privies The second element of res judicata is easily met here as there is an identity of parties. The TransCor was the primary Defendant in Schilling and all of the current Plaintiffs, both named and absent, were members of the certified Schilling class. Issues Actually Litigated or Issues that Should Have Been Litigated The third element of res judicata “not only prohibits parties from bringing claims they already have brought, but also from bringing those claims they should have brought.” Heike v. Cent. Michigan Univ. Bd. of Trustees, 573 F. App’x 476, 482 (6th Cir. 2014) (emphasis in original); see also Rawe v. Liberty Mut. Fire Ins. Co., 462 F.3d 521, 528 (6th Cir. 2006). Thus, “plaintiffs cannot avoid the effects of claim preclusion by merely repacking their grievances into alternative theories of recovery or by seeking different remedies.” Heike, 573 F. App’x at 482 (citing Rawe, 462 F.3d at 529). As they themselves assert, “Plaintiffs are advancing the same theory, on behalf of a subset of the Schilling plaintiffs, and a subset of the Schilling facts – transactions that lasted substantially longer than the ‘lowest common denominator’ of 24 hours and one minute at issue in Schilling.” (Docket No. 57 at 19) (emphasis in original). The only
Schilling Complaint, setting forth suggested contents of notice to putative class members, including that they will be “bound by any judgment on the common issues adverse to the class.”).
9

difference is that in the instant matter, Plaintiffs have repackaged the Schilling class members into four subclasses.
However, the Court cannot ignore that the now-offered subclasses could have been brought in the prior action and agrees with the Schilling court that the “potential need to distinguish among subclasses should have been clear since the inception of this case.” 2012 WL 4859020, at *2 (Oct. 11, 2012).4 The proposed subclasses currently before the Court were not litigated in the prior litigation because the Schilling Plaintiffs defined the class broadly to maximize its size. In so doing, Plaintiffs chose not to litigate the issue of prisoners who had been transported for periods significantly longer than 24 hours. Plaintiffs’ late-stage attempt to amend their Schilling complaint to add the subclasses now at issue only underscores that the subclasses could have been brought in the previous action. As the Schilling court said when denying the amendment, “Plaintiffs made a strategic decision to seek class-wide relief for one class of all inmates transported for 24 hours or more. The Court is wary of allowing amendment at this juncture simply because plaintiffs’ strategy did not work.” 2012 WL 4859020, at *3 (Oct. 11, 2012). Because the subclasses now before the Court could – and should – have been litigated as part of the Schilling case, the third element of the res judicata analysis is met.
Identity of Causes of Action
Fourth and finally, to bar a claim under the doctrine of res judicata, there must also be an “identity of the causes of action.” Westwood Chem. Co., 656 F.2d at 1227. “The now-accepted test in preclusion law for determining whether two suits involve the same claim or cause of
4 For example, Plaintiffs relied on Hoptowit v. Ray, 682 F.2d 1237, 1258 (9th Cir. 1982), throughout the Schilling litigation and continue to do so now. That case, which discusses importance of the length of time of a constitutional deprivation, should have alerted Plaintiffs to the distinct need for subclasses in advancing their claims. Moreover, the Schilling Plaintiffs knew how to implement Rule 23’s subclass mechanism when they found it strategic: they pleaded and certified a subclass of prisoners transported in the State of California.
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action depends on factual overlap, barring ‘claims arising from the same transaction.’” United States v. Tohono O’Odham Nation, ––– U.S. ––––, 131 S. Ct. 1723, 1730 (2011) (citation omitted). Two lawsuits are the same “if they are based on substantially the same operative facts, regardless of the relief sought in each suit.” Id. at 1731.
Plaintiffs did not allege any new material facts in their second complaint. To the contrary and as noted above, Plaintiffs have characterized the underlying facts in this case as a “subset” of the Schilling facts. (Docket No. 57 at 19). Plaintiffs also use the same statutory mechanism to raise the same constitutional claims about the same deplorable conditions of prisoner transport. The difference here is not one of fact, but of strategy.
This Court is mindful “that neither collateral estoppel nor res judicata is rigidly applied.” Bronson v. Bd. of Ed. of City Sch. Dist. of Cincinnati, 525 F.2d 344, 349 (6th Cir. 1975) (internal quotation marks and citation omitted). But just as the Schilling court concluded that Plaintiffs sought to reform their strategy too late and denied their motion to amend the complaint to include subclasses, this Court agrees that allowing Plaintiffs a second bite at the apple would be inappropriate. The doctrine of res judicata therefore bars Plaintiffs’ class claims.
B. Plaintiffs’ Individual Claims
The Parties and the Schilling court have made clear that the individual claims of absent class members survived the termination of the Schilling litigation. See, e.g., Docket No. 55 at 10 n.7 (Defendant’s Motion for Judgment on the Pleadings) (“The individual Plaintiffs in Cedillo are asserting . . . individual claims [that] are outside the scope of the Schilling court’s summary judgment order.”); Schilling v. TransCor America, LLC, 2012 WL 4859020, at *3 (Oct. 11, 2012) (“Defendants have admitted that the claims of individuals who were continuously transported for more than 24 hours and one minute survive the Court’s motion for summary
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judgment.”). TransCor has also conceded that these individual claims were tolled for at least some portion of the Schilling litigation. See Docket No. 55 at 17 (“TransCor does not dispute for purposes of this Motion that the granting of class certification coupled with a liability ruling adverse to the class in Schilling warranted a limited period of tolling for the individual claims of class members to effectuate the purposes of Rule 23.”) (emphasis in original). Yet determining and applying the proper statute of limitations to each of the individual claims raises nuanced questions of both federal and state law.
As set forth below, the Court finds that the applicable statute of limitations for each Plaintiff’s claim is the law of the state in which the Plaintiff’s trip with TransCor terminated. Put another way, Plaintiffs’ claims are governed by the laws of the state in which TransCor deposited them. Additionally, the individual Plaintiffs’ claims were tolled from the commencement of the Schilling litigation until the Schilling court’s October 11, 2012 order denying amendment to the certification order. Applying the proper statute of limitations and deducting the time tolled by Schilling, the Court finds that only Plaintiff Houston’s individual claim is time-barred.
Applicable Statute of Limitations
The text of Section 1983 does not specify a statute of limitations. The Supreme Court has accounted for this absence by directing that “a State’s personal injury statute of limitations should be applied to all § 1983 claims.” Owens v. Okure, 488 U.S. 235, 240-41 (1989) (citing Wilson v. Garcia, 471 U.S. 261, 280 (1985)). Here, determining the applicable Section 1983 statute of limitations is further complicated by the fact that the individual Plaintiffs’ injuries arose in six different states, which have statutes of limitations of varying lengths.
As a threshold matter, the fact that this case originated in the Northern District of California has little bearing on the statute of limitations analysis. Both the Sixth and Ninth
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Circuits look to the statute of limitation of the state in which the claim arose when presented with Section 1983 claims. See Kuhnle Bros., Inc. v. Cnty. of Geauga, 103 F.3d 516, 519 (6th Cir. 1997) (“[T]he proper limitations period for a § 1983 action is the limitations period for personal injury actions in the state in which the § 1983 claim arises.”); Faile v. Geary, 958 F.2d 376 (9th Cir. 1992) (“Federal courts apply the statute of limitations of the state in which the claim arises for 42 U.S.C. § 1983 claims.”). A Section 1983 claim arises “when the plaintiff has a complete and present cause of action, that is, when the plaintiff can file suit and obtain relief.” Wallace v. Kato, 549 U.S. 384, 388 (2007). As has been made clear by the history of this case, the length of each Plaintiff’s trip with Defendants is an integral aspect of his claim. (Docket Nos. 55-6, 55-8). It follows that a Plaintiff’s cause of action is only complete at the end of the trip and his claim “arises” in the terminus state.
The relevant statute of limitations is therefore that of the state in which each Plaintiff’s trip with Defendants ended. The states and applicable statutes of limitations are: California/two years for Plaintiffs Cedillo and Houston; New Jersey/two years for Plaintiffs Greenemeier and Arno; South Carolina/three years for Plaintiff Cleaves; New York/three years for Plaintiff Wright; Wisconsin/six years for Plaintiff Roussell; and Michigan/three years for Plaintiff Hugall.
Tolling of the Statute of Limitations
Class action or “American Pipe” tolling applies to Section 1983 class action lawsuits brought in federal courts.5 Chardon v. Fumero Soto, 462 U.S. 650, 661 (1983). Under the American Pipe doctrine, the commencement of a class action lawsuit “suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the
5 American Pipe tolling derives its name from the Supreme Court’s decision in American Pipe & Construction Co. v. Utah, 414 U.S. 538, 540 (1974).
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suit been permitted to continue as a class action.” Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 353-54 (1983). The Court must again look to state law to determine the effect of American Pipe tolling and whether such tolling suspended, renewed, or extended the applicable statute of limitations. Chardon, 462 U.S. at 661 (applying Puerto Rico’s renewal rule to restart the statute of limitations upon the expiration of American Pipe tolling in a Section 1983 action). In all six of the states at issue here, tolling generally suspends rather than renews the statute of limitations.6
The final step, then, is to determine how long the Schilling litigation suspended the applicable statutes of limitations. The purpose of American Pipe tolling is to protect the class action procedure and its “promotion of efficiency and economy of litigation.” Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 349 (1983). Tolling advances this purpose by allowing unnamed class members to “rely on the named plaintiffs to press their claims,” id. at 353, thereby preventing “a needless multiplicity of actions,” id. at 361. The advantages of tolling therefore disappear when class members may no longer rely on the class action mechanism and must take up the banner themselves.
This case is distinct from the typical American Pipe scenario insofar as the Schilling court actually certified the class before ultimately deciding against it on the merits. Plaintiffs are therefore correct to analogize this case to Taylor v. United Parcel Service, Inc., 554 F.3d 510 (5th Cir. 2008) and Edwards v. Boeing Vertol Co., 717 F.2d 761 (3d Cir. 1983), where the Third and Fifth Circuits held that American Pipe tolling applied to a certified class until a final decision
6 See Falk v. Children’s Hosp. Los Angeles, 188 Cal.Rptr.3d 686 (Cal. Ct. App. 2015), review filed (July 30, 2015); Staub v. Eastman Kodak Co., 726 A.2d 955, 967 (N.J. Super. Ct. App. Div. 1999); Warren Consol. Sch. v. W.R. Grace & Co., 518 N.W.2d 508, 511 (Mich. Ct. App. 1994); Cullen v. Margiotta, 811 F.2d 698, 719-20 (2d Cir. 1987) overruled on other grounds Agency Holding Corp. v. Malley–Duff & Assocs., Inc., 483 U.S. 143 (1987); S.C. Code Ann. § 15–3–540(1); Wis. Stat. Ann. § 893.13.
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on the merits, including any appeal. As the Fifth Circuit stated in Taylor, class members were “entitled to assume that the class representatives continued to represent [them] and protect [their] interests in appealing the order dismissing the class claims on the merits.” Taylor v. United Parcel Serv., Inc., 554 F.3d 510, 521 (5th Cir. 2008). Applying the logic of Taylor and Edwards to the policies underlying American Pipe tolling, it is clear that the critical point is when unnamed class members are no longer entitled to rely on the class representatives.
The Court finds that unnamed class members were no longer entitled to rely on the Schilling class representatives after the Schilling court denied the plaintiffs’ motion to amend/correct the certification order on October 11, 2012. See Schilling v. TransCor America, LLC, 2012 WL 4859020, at *1 (N.D. Cal. Oct. 11, 2012). By that point, the Schilling court had already ruled on the merits of the class claims when granting Defendants’ motion for summary judgment in August 2012, a ruling that the Schilling Plaintiffs did not appeal. In denying the Schilling Plaintiffs’ motion to amend/correct the certification order – another ruling that the Schilling Plaintiffs did not appeal – the Schilling court cemented the end of the class claims such that unnamed class members could no longer rely on the class action vehicle to prosecute their claims. Accordingly, the Schilling litigation tolled the claims of unnamed and absent class members from February 14, 2008 until October 11, 2012.7
The statute of limitations again began to run on the individual claims at issue here on October 12 and ran until Plaintiffs filed this action on April 8, 2013, a period of 178 days. Only Plaintiff Houston had fewer than 178 days remaining on his statute of limitation at the time this
7 Plaintiffs make a last-minute request for equitable tolling because notice of the adverse Schilling rulings did not go out until January 2013. (Docket No. 57 at 25). Yet Plaintiffs fail to present any evidence that they had no actual knowledge of the adverse rulings until that time. In the absence of any such evidence, the Court sees no basis for granting equitable relief.
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case was filing.8 Accordingly, while Plaintiff Houston’s individual claims are time-barred, the claims of the other seven Named Plaintiffs remain timely.
III. CONCLUSION Because res judicata bars relitigation of the class claims, Defendant’s Motion for Judgment on the Pleadings will be granted as to those claims. Plaintiff Houston’s individual claim is dismissed as time-barred. The individual claims of the other Named Plaintiffs are timely and the Motion is denied insofar as it seeks to dismiss them. An appropriate order will enter.
_________________________________________ KEVIN H. SHARP UNITED STATES DISTRICT JUDGE
8 For the Court’s calculation of the statute of limitations, see the chart in Appendix A, attached hereto.
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APPENDIX A

Plaintiff
Ruben Cedillo Alonzo Cleaves
Terry Houston Justin Wright
John Greenemeier John Roussell
Leonard Hugall
Craig Arno

Terminus State*
California South Carolina California New York
New Jersey Wisconsin
Michigan
New Jersey

Statute of Limitations
(“SOL”)
2 Years/730 Days 3 Years/1095 Days 2 Years/730 Days 3 Years/1095 Days 2 Years/730 Days 6 Years/2190 Days 3 Years/1095 Days 2 Years/730 Days

Date Claim Accrued**
November 3, 2006 September 10, 2007 June 11, 2006 June 12, 2006
September 17, 2006 March 24, 2007
October 15, 2007
November 20, 2007

Time Left on SOL at
Commencement of Schilling Litigation***
262 Days 938 Days
117 Days 483 Days
215 Days 1864 Days
974 Days
645 Days

Timeliness of Current
Claim
Timely Timely
Time-Barred Timely
Timely Timely
Timely
Timely

* The location in which Defendants’ transport of Plaintiff concluded.
** The date on which Defendants’ transport of Plaintiff concluded.
*** As noted above, claim began to accrue on the final day of transport and the SOL ran through February 13, 2008 (the day before the Schilling litigation began to toll the SOL).

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