FILED 
 Case 9:12-cv-00155-DWM Document 51 Filed 10/31/13 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA MISSOULA DIVISION

OCT 3 1 2013 ~s.~nOtisatncnt Caourt

LAURNA CHIEF GOES OUT, LYNDA FRENCH, BRANDY BURKOWSKI and DAWN MORRIS, as next friend and natural mother of her minor son D.M., on behalf of themselves and all others similarly situated,
Plaintiffs,
v.

CV-12-155-M-DWM
CONSENT DECREE, ORDER AND JUDGMENT APPROVING AND ADOPTlt-rG PROPOSED SETTLEMENT AGREEMENT

MISSOULA COUNTY, CARL IBSEN, JASON KOWALSKI, MARK FOSS, and MARK HARRIS,

Defendants.

On October 31, 2013, the Court heard the Joint Motion for final approval of the Proposed Class Action Settlement Agreement attached as Exhibit A ("PSA") in the above-captioned action. In accordance with the Preliminary Approval Order (Dkt. #46), Class Members have been given notice of the terms of the PSA and an opportunity to object and provide comment. Having considered the PSA, the papers submitted by the Parties in support of approval of the Agreement, and
CONSENT DECREE, ORDER AND JUDGMENT -1­

Case 9:12-cv-00155-DWM Document 51 Filed 10/31/13 Page 2 of 5
arguments and evidence presented at the fairness hearing, the Court HEREBY ORDERS AND MAKES DETERMINATIONS AS FOLLOWS:
1. For the purposes of this Consent Decree, Order and Judgment, the Court adopts all defined terms as set forth in the PSA as Consent Decree, order and Judgment, which shall continue in full force and effect.
2. This Court has continuing jurisdiction over the subject matter of this litigation and over all parties and Class Members in this litigation.
3. The Court previously found and continues to find that the class and subclass meets the numerosity, commonality and typicality requirements to justify certification, and that resolution of this matter through a class action is superior to other available methods.
4. The Court previously found and continues to find that Named Plaintiffs are adequate class representatives.
5. The Court previously found and continues to find that Class Counsel has adequately represented the Class.
FINAL APPROVAL OF NOTICE 6. Pursuant to the Court's Preliminary Approval Order (Dkt #46), Notice of the PSA was posted in the housing unit day rooms of Housing Unit 2 and the Juvenile Detention Center in the Missoula County Detention Facility. The Notice informed potential Class Members of the terms of the PSA, their opportunity to file
CONSENT DECREE, ORDER AND JUDGMENT -2­

Case 9:12-cv-00155-DWM Document 51 Filed 10/31/13 Page 3 of 5
written objections, and to appear in person or by counsel at the October 31, 2013 Fairness Hearing.
7. The Court finds that these procedures afforded protections to Class Members and provided the basis for the Court to make an informed decision and approval of the PSA. The Court finds further the notice provided in this case was the best Notice practicable and satisfied the requirements Rule 23 of the Federal Rules of Civil Procedure. FINAL APPROVAL OF THE PROPOSED SETTLEMENT AGREEMENT
8. The Court has reviewed the PSA and finds that it is fair, adequate, and reasonable when balanced against the possible outcome of further litigation relating to class certification, liability, and remedies. The Court finds further that sufficient investigation, formal discovery, and research have been conducted such that counsel for all Parties is able to reasonably evaluate their respective positions. The Court also finds that PSA at this time will avoid additional substantial costs such as those that have already been incurred by both Parties and will avoid the delay and risks that would be presented by further prosecution of the litigation. The Court finds that the PSA has been reached after serious and non-collusive arm's-length negotiations.
9. PSA Court finds that no Class Member objected to the PSA.
CONSENT DECREE, ORDER AND JUDGMENT -3­

Case 9:12-cv-00155-DWM Document 51 Filed 10/31/13 Page 4 of 5
10. Taking into account the (1) Plaintiffs' likelihood of success on the merits (2) the risks inherent in continued litigation, (3) the extent of discovery completed and the stage of litigation when the PSA was reached, (4) the complexity, expense, and likely duration of the litigation in the absence of settlement, and (5) the experience and views of counsel, the Court finds that the PSA is fair, adequate, reasonable, and deserves this Court's final approval. The Court further finds that the PSA was made in good faith, negotiated at arm's length and represents the best interests of the class and subclass.
11. The Court finds that the relief provided in the PSA is narrowly drawn and extends no further than necessary to correct the alleged violation in conformance with the Prison Litigation Reform Act, 18 U.S.C. §3625(a)(1). Having made these findings, IT IS HEREBY ORDERED that:
1. The Court grants final approval of the Proposed Settlement Agreement negotiated by the parties, attached hereto as Exhibit A, on the grounds that it appears to be fair, adequate and reasonable;
2. Notice of the Proposed Settlement Agreement and manner of dissemination to the Class and Subclass were reasonable and sufficient;
CONSENT DECREE, ORDER AND JUDGMENT-4­

Case 9:12-cv-00155-DWM Document 51 Filed 10/31/13 Page 5 of 5

3. The Proposed Settlement Agreement, attached as Exhibit A, is hereby

adopted as a Consent Decree, Order and Judgment of the Court in this Civil

Case.

4. Under the Federal Rules of Civil Procedure, the Court, in the interests of

justice, expressly directs the Clerk of the Court to enter this Consent Decree,

Order and Judgment.

IT IS SO ORDERED.

11:.~r ~

Dated this day of

2013.

CONSENT DECREE, ORDER AND JUDGMENT -5­

Case 9:12-cv-00155-DWM Document 51-1 Filed 10/31/13 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT 
 FOR THE DISTRICT OF MONTANA 
 MISSOULA DIVISION 


LAURNA CHIEF GOES OUT, LYNDA FRENCH, BRANDY BURKOWSKI and DAWN MORRIS AS NEXT FRIEND AND NATURAL MOTHER OF HER MINOR SON D.M., on behalf of themselves and all others similarly situated,
Plaintiffs,
v.
MISSOULA COUNTY, CARL IBSEN, JASON KOWALSKI, MARK FOSS, AND MARK HARRIS,
Defendants.

) 
 ) Cause No. CV 12-1SS~M-DWM 
 ) 
 ) 

) SETTLEMENT AGREEMENT 

) 
 ) 
 ) 
 ) 
 ) 
 ) ) 
 ) 
 ) 
 ) 
 ) 
 ) 
 ) 


SETTLEMENT AGREEMENT

The plaintiffs in this suit assert federal and state constitutional violations on behalf of a class of prisoners housed in Housing Unit 2 and the Juvenile Detention Center of the Missoula County . Detention Facility ("MCDF") asserting lack of access to outdoor recreation. This Settlement Agreement relates to access to outdoor recreation for all prisoners housed in Housing Unit 2 and the Juvenile Detention Center at MCDF.

I. Preliminary Statement

A. The parties recognize that prisoners are entitled to outdoor exercise pursuant to the ,Eighth Amendment to the U.S. Constitution and Article II, §22 of the Montana Constitution.

Cause No. CV 12-155-M-DWM Settlement Agreement

Page 1 of6
- ­ --~'-"---------'----

Case 9:12-cv-00155-DWM Document 51-1 Filed 10/31/13 Page 2 of 6 B. The parties further recognize that pursuant to the Fourteenth Amendment to the U.S.
Constitution and Article II, §4 of the Montana Constitution, female and juvenile prisoners similarly situated to male prisoners are entitled to equal. access to outdoor exercise.
C. The parties agree that upon preliminary approval and notice to the class, the parties shall jointly move the Court to adopt this Settlement Agreement as a Consent Decree, Judgment and Order.
II. Construction of Outdoor Recreation Areas
A. Missoula County agrees to construct outdoor areas directly accessible from Housing Unit 2 and the Juvenile Detention Center in accordance with American Correctional Association Standard 4-4154 (2003) and architectural design.
B. One of the outdoor areas directly accessible from Housing Unit 2 and the outdoor area directly accessible from the Juvenile Detention Center shall each have a basketball hoop. Basketball privileges may be temporarily suspended in the event that basketball privileges are abused.
C. Missoula County has retained an architect to provide appropriate design.
D. Missoula County agrees to have the outdoor recreation areas completed no later than six months from the date on which this Court preliminarily approves this Settlement Agreement, unless unforeseen delays arise out of the city permitting process.
III. Access to outdoor recreation
A. Defendants shall make outdoor recreation available to each prisoner, including all prisoners housed in Housing Unit 2 and the Juvenile Detention Center, for (1) one hour, five days per week. Prisoners will be allowed to run, jog, or engage in calisthenics in the outdoor recreation area.

Cause No. CV l2-l55-M-DWM Settlement Agreement

Page 2 of6

_ _ - _ ------_._----_.._-- - - - - - -

......

._------------ ---­

Case 9:12-cv-00155-DWM Document 51-1 Filed 10/31/13 Page 3 of 6
B. The outdoor schedule will be posted in the dayroom of each pod in all housing units.
C. During colder weather, Defendants will make available a sufficient number of clean and usable coats so that all prisoners who choose to go outdoors will have a coat, subject to paragraph III(E).
D. MCDP administrators have the authority to identify extreme weather conditions (e.g. coldlhot temperatures, blizzards, rain/thundernightning storms, and other inclement weather. In extreme weather conditions, and when it is in the best interest of the inmate(s) and MCDP staff, the outdoor recreation opportunities may be suspended or cancelled until weather conditions have improved.
E. Prisoners may not be denied access to outdoor recreation because they are in administrative segregation. Prisoners may be denied access to outdoor recreation only in extraordinary circumstances and upon a finding that providing access to outdoor recreation may create a danger that the prisoner will injure himself or herself or others. Where legitimate safety, security, and medical concerns are apparent, MCDP administrators may disallow outdoor recreation.
P. Any denial of access to outdoor recreation shall be for the least amount of time possible, and shall require a written ''No Recreation Order" by MCDP officials and/or medical officials for each day access is denied, which shall be placed in the prisoners' custodial record:
G. Missoula County shall post the outdoor recreation schedule in each housing unit. Missoula County agrees to provide access to prisoners during reasonable times of day with regard to temperature and sunlight.
H. Defendants will maintain a log of outdoor recreation periods that includes the time that recreation was offered and the number ofprisoners who went outside.

Cause No. CV 12-1S5-M-DWM Settlement Agreement

Page 3 of6

Case 9:12-cv-00155-DWM Document 51-1 Filed 10/31/13 Page 4 of 6
I. MCDF staffing shall be adequate and appropriate to provide consistent and scheduled access to outdoor recreation to all prisoners for one (1) hour five (5) days per week. Defendants agree to hire a minimum of one employee to meet increased staff demands that the obligations set forth in this Settlement Agreement require.
J. Defendants agree to implement a policy outlining the outdoor recreation procedures set forth herein;
K. The ACLU of Montana and Greg Munro agree that they will not bring an action on behalf of Housing Unit 1 or 3 prisoners based on the claim that existing Housing Unit 1 and/or Housing Unit 3 outdoor recreation areas are inadequate relative to the newly constructed outdoor recreation areas for the duration of this case
IV. Monitoring and Jurisdiction
A. The parties agree that this Court has jurisdiction over the parties and the subject matter of this Action.
B. Upon adoption as a Consent Decree, Order and Judgment, this Settlement Agreement shall continue in full force and effect. All parties to this agreement recognize the continuing jurisdiction of this Court for the purpose of enforcing this Settlement Agreement and awarding post-judgment attomeys'fees upon a properly filed motion.
C. Defendant Missoula County agrees to make available for inspection the written logs for outdoor recreation every three months for a period of two years beginning on the date the outdoor recreation areas are first utilized. Every six months for a two year period, defendants agree to allow plaintiffs' counsel access to confidential interviews with class members in the Missoula County Detention Facility for the sole purpose of discussing outdoor recreation access. After two years, this Consent Decree, Order and Judgment may be terminated pursuant to 18 U.S.C. §3626(b) of the Prison Litigation Reform Act ("PLRA").

Cause No. CV 12·155·M·DWM Settlement Agreement

Page 4 of6

Case 9:12-cv-00155-DWM Document 51-1 Filed 10/31/13 Page 5 of 6
D. The parties agree that the Court shall have jurisdiction for the purposes of enforcing' this Settlem~t Agreement adopted as a Consent Decree, Order and Judgment, and to detennine the amount of attorneys' fees to be awarded post-judgment, if any, on a properly filed motion. The parties agree that the relief granted by this Agreement is narrowly drawn, extends no further than necessary to correct the alleged violations of plaintiffs' federal and state rights, and is the least intrusive means necessary to correct the alleged violations, thereby satisfying the requirements of 18 U.S.C. §3626(a)(1 )(A).
V. Payment and Special Levy
A. Missoula County is self-insured and a special levy will be required to pay for all of the associated costs to Missoula County, including architectural and design fees, construction of the proposed outdoor facilities, attorney's fees, if any, and additional MCDP staffing. Nevertheless, Missoula County acknowledges and agrees that perfonnance of the obligations binding it herein is not contingent on any subsequent event or condition.
VI. Attorney's Fees
A. Attorneys' fees, if any, are to be detennined by Stipulation, or by Order of this Court. Should the parties be unable by separate agreement to decide agree upon an amount of attorneys' fees, plaintiffs expressly reserve the right to seek attorneys' fees from the Court.

Cause No. CV 12-155-M-DWM Settlement Agreement

Page 5 of6
- - - - - - -.•.------ - - - - ­

Case 9:12-cv-00155-DWM Document 51-1 Filed 10/31/13 Page 6 of 6 CAUSE NO. CV 12-155-M-DWM SETTLEMENT AGREEMENT SIGNATURE PAGE 


Dated this aD~ day of June, 2013

MISSOULA COUNTY SHERIFF CARL IBSEN 


Dated thisc1o"""" day of June, 2013
Dated this ~ '\~ day of June, 2013

MISSOULA COUNTY COMMISSIONER
CHAIR, MICHELE LANDQUIST
~'£..~

Dated this _ _ day of June, 2013

OULA COUNTY COMMISSIONER BIB CAREY
NOT AVAILABLE FOR SIGNATURE

APPROVED AS TO FORM AND CONTENT:

Garlington, Lohn & Robinson, PLLP P.O. Box 7909 Missoula, MT 59807-7909 Attorneys for Defendants
By ~.(:?t~
Charles E. McNeil
Dated this 2-'i day of June, 2013

AMERICAN CIVIL LIBERTIES UNION OF MONTANA P.O. Box 9138 Missoula, MT 59807
BYb~ a Conley Dated this ~day of June, 2013

Greg Munro, Attorney at Law 3343 Hollis Street Missoula, MT 59801

Cause No. CV 12·l55-M·DWM Settlement Agreement

Page 6 of6

 
 Case 9:12-cv-00155-DWM Document 1 Filed 09/12/12 Page 1 of 24

Anna Conley ACLU of Montana Foundation P.O. Box 9138 Missoula, MT 59807 Telephone: (406) 443-8590, Ext. 3056 Email: annac@aclumontana.org

Greg Munro Attorney-at-law 3343 Hollis Street Missoula, MT 59801 Telephone: (406) 207-8267 Email: greg.munro@umontana.edu

ATTORNEYS FOR PLAINTIFFS

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA MISSOULA DIVISION

LAURNA CHIEF GOES OUT, LYNDA FRENCH, AND BRANDY BURKOWSKI on behalf of themselves and all others similarly situated,
Plaintiffs,
vs.
MISSOULA COUNTY, CARL IBSEN, JASON KOWALSKI, MARK FOSS, AND MARK HARRIS,
Defendants.

) No. ) ) ) CLASS ACTION ) ) COMPLAINT ) ) ) ) ) ) ) ) ) )

CLASS ACTION COMPLAINT -1

Case 9:12-cv-00155-DWM Document 1 Filed 09/12/12 Page 2 of 24
INTRODUCTION Plaintiffs are prisoners incarcerated at the Missoula County Detention Facility (“MCDF”) in Missoula, Montana. While adult male prisoners are allowed daily outdoor exercise, juvenile and female prisoners at MCDF are denied any fresh air or outdoor exercise, and have spent up to a year with no fresh air, direct sunlight or outdoor exercise. Plaintiffs bring this action on behalf of themselves and all similarly situated prisoners housed in Housing Unit 2 and the Juvenile Detention Center for one month or more who are denied fresh air and outdoor exercise for a prolonged period of time. Plaintiffs are guaranteed the right to be free from cruel and unusual punishment, and are entitled to the equal protection rights set forth in the U.S. and Montana Constitutions. Defendants have violated both of these rights through prolonged deprivation of fresh air and outdoor exercise for prisoners housed in Housing Unit 2 and the Juvenile Detention Center in MCDF. Defendants’ prolonged denial of fresh air and outdoor exercise has negatively impacted plaintiffs’ psychological and physical well-being. Prisoners at MCDF uniformly report increased anxiety, depression, panic attacks, sleep problems, skin problems, loss of hair, and vitamin D deficiencies as a result of deprivation of fresh air and outdoor exercise. Defendants have been repeatedly
CLASS ACTION COMPLAINT -2

Case 9:12-cv-00155-DWM Document 1 Filed 09/12/12 Page 3 of 24
made aware of these prisoners’ suffering, and continue to deny them fresh air and outdoor exercise.
NATURE OF THE ACTION 1. Plaintiffs bring Count I of this action pursuant to 42 U.S.C. §1983 to redress violations of Plaintiffs’ rights under the Fourteenth Amendment to the U.S. Constitution to receive equal protection while incarcerated at MCDF. In connection with Count I, Plaintiffs seek injunctive and declaratory relief against Defendants Carl Ibsen, Jason Kowalski, Mark Harris and Mark Foss in their official capacities, as well as attorneys’ fees and costs. 2. Plaintiffs bring Count II of this action pursuant to 42 U.S.C. §1983 to redress violations of Plaintiffs’ rights under the Eighth Amendment to the U.S. Constitution to be free from cruel and unusual punishment. In connection with Count II, Plaintiffs seek injunctive and declaratory relief against Defendants Carl Ibsen, Jason Kowalski, Mark Harris and Mark Foss in their official capacities, as well as attorneys’ fees and costs. 3. Plaintiffs bring Count III of this action to redress violations of Article II, §4 of the Montana Constitution, which guarantees equal protection of the laws, prohibits discrimination on the basis of sex and prohibits violations to human dignity. In connection with Count III, Plaintiffs seek injunctive and declaratory
CLASS ACTION COMPLAINT -3

Case 9:12-cv-00155-DWM Document 1 Filed 09/12/12 Page 4 of 24
relief against Defendants Carl Ibsen, Jason Kowalski, Mark Harris and Mark Foss in their official capacities, as well as attorneys’ fees and costs.
4. Plaintiffs bring Count IV of this action to redress violations of Article II, §22 of the Montana Constitution which prohibits the infliction of cruel and unusual punishment. In connection with Count IV, Plaintiffs seek injunctive and declaratory relief against Defendants Carl Ibsen, Jason Kowalski, Mark Harris and Mark Foss in their official capacities, as well as attorneys’ fees and costs.
JURISDICTION AND VENUE 5. Jurisdiction is conferred upon this Court for Counts I and II pursuant to 28 U.S.C. 1331 and 28 U.S.C. 1343 because the matters in controversy arise under the Constitution and the laws of the United States. 6. Supplemental jurisdiction is conferred upon this Court for Counts III and IV pursuant to 28 U.S.C. 1367. 7. Venue is proper in this Court under 28 U.S.C. §1391(b) because a substantial part of the events that give rise to Plaintiffs’ claims took place in Missoula, Montana. 8. This Court has authority pursuant to 42 U.S.C. 1983 to order injunctive and declaratory relief, and has authority under 42 U.S.C. §1988 to award attorney fees and costs to successful civil rights plaintiffs.
CLASS ACTION COMPLAINT -4

Case 9:12-cv-00155-DWM Document 1 Filed 09/12/12 Page 5 of 24
PARTIES 9. Plaintiff Laurna Chief Goes Out is a female prisoner awaiting trial and sentencing. Ms. Chief Goes Out has been at MCDF with no access to fresh air and outdoor exercise since January 4, 2012. Ms. Chief Goes Out has experienced decreased physical and psychological well-being as a result of being deprived of fresh air and outdoor exercise for over 8 months. Ms. Chief Goes Out has experienced increased depression, a lack of energy and overwhelming feeling of lethargy and despondency, hair loss, skin problems, and a general decline in her sense of physical and psychological well-being as a result of being deprived of fresh air and outdoor exercise. 10. Plaintiff Lynda French is a female prisoner being held in MCDF as a federal prisoner in the custody of the U.S. Marshall awaiting sentencing. Ms. French has been held at MCDF since April 2, 2012. The Federal PerformanceBased Detention Standards require non-federal facilities housing federal inmates to provide inmates with daily outdoor exercise. Despite this, Ms. French has not been outside for the entire duration of her incarceration at MCDF, which exceeds five months. Ms. French has experienced depression, panic attacks, increased anxiety, lethargy, difficulty regulating her temperature, weight gain, hair loss, skin problems and a general decline in her sense of physical and psychological wellbeing as a result of being deprived of fresh air and outdoor exercise.
CLASS ACTION COMPLAINT -5

Case 9:12-cv-00155-DWM Document 1 Filed 09/12/12 Page 6 of 24
11. Plaintiff Brandy Burkowski is a female prisoner being held in MCDF as a federal prisoner in the custody of the U.S. Marshall awaiting sentencing. Ms. Burkowski has been held at MCDF since July 10, 2012. The Federal PerformanceBased Detention Standards require non-federal facilities housing federal inmates to provide inmates with daily outdoor exercise. Despite this, Ms. Burkowski has not been outside for the entire duration of her incarceration at MCDF, which exceeds two months. Ms. Burkowski has experienced depression, increased anxiety, lethargy, skin problems, hair loss and a general decline in her sense of physical and psychological well-being as a result of being deprived of fresh air and outdoor exercise.
12. Defendant Carl Ibsen is and at all relevant times has been the Missoula County Sheriff responsible for running MCDF.
13. Defendant Jason Kowalski is and at all relevant times has been the Captain of MCDF in charge of overseeing MCDF and the day-to-day operations at MCDF. Captain Kowalski responds to appeals from prisoners whose grievances have been denied. Captain Kowalski has denied multiple appeals from prisoners requesting access to fresh air and outdoor exercise.
14. Defendant Mark Foss is and at all relevant times has been the Chief Detention Officer at MCDF who aids the Captain in overseeing MCDF and the day-to-day operations at MCDF. Sergeant Foss responds to prisoners’ kites and
CLASS ACTION COMPLAINT -6

Case 9:12-cv-00155-DWM Document 1 Filed 09/12/12 Page 7 of 24
grievances, and has denied kites and grievances from prisoners requesting access to fresh air and outdoor exercise.
15. Defendant Mark Harris is and at all relevant times has been the Sergeant at MCDF who aids the Captain in overseeing MCDF and the day-to-day operations at MCDF. Sergeant Harris responds to prisoners’ kites and grievances, and has denied multiple kites and grievances from prisoners requesting access to fresh air and outdoor exercise.
16. It has been well established for many years through federal caselaw and multiple jail and prison standards that prisoners cannot be deprived of fresh air and outdoor exercise. By depriving prisoners at MCDF of fresh air and outdoor exercise for prolonged periods of time, Defendants Ibsen, Kowalski, Foss and Harris have violated this well-established law. Through numerous verbal requests, kites, grievances, appeals, and correspondence between Plaintiffs’ counsel and defendants, Defendants Ibsen, Kowalski, Foss and Harris have been made aware of a substantial risk of serious harm to prisoners at MCDF, and have not taken reasonable measures available to them to alleviate that risk.
17. It has been well-established for many years that similarly situated prisoners must receive parity of services and opportunities.
18. Acting under the color of state law, Defendants Ibsen, Kowalski, Foss and Harris have acted with discriminatory intent and taken action they knew or
CLASS ACTION COMPLAINT -7

Case 9:12-cv-00155-DWM Document 1 Filed 09/12/12 Page 8 of 24
reasonably should have known would violate plaintiffs’ right to equal protection by denying female and juvenile prisoners access to fresh air and outdoor exercise.
19. Defendants Ibsen, Kowalski, Foss and Harris have personally participated in violations of plaintiffs’ equal protection rights.
20. Defendants Ibsen, Kowalski, Foss and Harris have aware of prisoners’ suffering and symptoms arising from a lack of fresh air and outdoor exercise. For months, juvenile and female prisoners have filed kites, grievances and appeals requesting fresh air and outdoor exercise, which defendants have consistently denied. These kites, grievances and appeals have explained the lack of fresh air and sunlight in the gym, and set forth many symptoms female and juvenile prisoners have suffered from the lack of fresh air and outdoor exercise. Prisoners’ symptoms that Defendants Ibsen, Kowalski, Foss and Harris are aware of include increased stress, depression and anxiety, panic attacks, loss of hair, skin problems and vitamin D deficiency.
21. Acting under the color of state law, Defendants Ibsen, Kowalski, Foss and Harris have taken action they knew or reasonably should have known would violate plaintiffs’ right to be free from cruel and unusual punishment by denying female and juvenile prisoners access to fresh air and outdoor exercise.
CLASS ACTION COMPLAINT -8

Case 9:12-cv-00155-DWM Document 1 Filed 09/12/12 Page 9 of 24
22. Defendants Ibsen, Kowalski, Foss and Harris have personally participated in violations of plaintiffs’ right to be free from cruel and unusual punishment.
23. With regard to all counts, Plaintiffs name Defendants Ibsen, Kowalski, Foss and Harris in their official capacity.
24. Defendant Missoula County is the local government entity responsible for maintaining a jail. The housing policy and procedure of MCDF denies prisoners housed in Housing Unit 2 and the Juvenile Detention Center access to fresh air and outdoor exercise. By allowing MCDF to maintain this housing policy and procedure, Defendant Missoula County has violates plaintiffs’ constitutional rights.
GENERAL ALLEGATIONS Missoula County Detention Facility Housing Units
25. The Missoula County Detention Facility (“MCDF”) opened in 1999, replacing the previous county jail on the fourth floor of the courthouse annex. MCDF’s total capacity is approximately 396.
26. MCDF houses adults in three Housing Units, Housing Unit 1 (“HU1”), Housing Unit 2 (“HU2”), and Housing Unit 3 (“HU3”). MCDF houses juvenile prisoners in a Juvenile Detention Center (“JDC”).
27. Each housing unit has 6 pods, A, B, C, D, E & F.
CLASS ACTION COMPLAINT -9

Case 9:12-cv-00155-DWM Document 1 Filed 09/12/12 Page 10 of 24
28. HU1 holds only adult males incarcerated in the Missoula Assessment and Sanction Center (“MASC”). Prisoners in HU1 are sentenced to the Department of Corrections (“DOC”), and are in MASC to be “assessed” for appropriate placement in a DOC facility, such as the Montana State Prison, a regional prison, Crossroads Correctional Center, or a community corrections program. If an adult male sentenced to the DOC is on parole violates the parole, he may be sent to MASC for a short “sanction”’ then go back out on parole.
29. Pods E and F in HU2 house female prisoners sentenced to county jail time, and female prisoners awaiting trial and sentencing for federal and state law charges. HU2 is the only housing unit that holds adult female prisoners. HU1 and HU3 do not hold any adult female prisoners. Pods C and D in HU2 house male and female prisoners in administrative segregation, and can hold female prisoners temporarily when Pods E and F are full. Pods A and B house male prisoners sentenced to county jail time and male prisoners awaiting trial and sentence. Male prisoners in pods A and B in HU2 can also be housed in HU3.
30. HU3 holds only male prisoners sentenced to county jail time and male prisoners awaiting trial and sentence.
31. The JDC holds up to 25 female and male juvenile prisoners. Prisoners in HU2 and JDC are denied fresh air and outdoor exercise
CLASS ACTION COMPLAINT -10

Case 9:12-cv-00155-DWM Document 1 Filed 09/12/12 Page 11 of 24
32. Both HU1 and HU3 have a nearly identical outdoor recreation area. Prisoners in HU1 and HU3 have access to this outdoor area five hours each week.
33. Each outdoor area has a mesh grate across the top, but no ceiling. Prisoners in this outdoor area breathe and exercise in fresh air. It rains and snows in this outdoor area. Prisoners in this outdoor area feel direct sunlight. In cold weather, prisoners in HU1 and HU3 are provided jackets to go outside to this outdoor area. In tours of the facility, prison administrators describe this area as the “outdoor rec area”.
34. There is no outdoor recreation area in HU2 or JDC. The only area for recreation in HU2 and JDC is an indoor gym that is similar in both HU2 and JDC. This gym has approximately five windows approximately 20 - 30 feet high. The windows are closed from approximately October through May each year. Prisoners in the gym cannot feel direct sunlight. During certain times of day, sunlight shines through the windows on very small areas of the gym floor. Female prisoners sometimes take turns standing in these small areas to try to feel sunlight through the window glass on a portion of their face or body. Because this area is indoors with a ceiling, it does not rain or snow in the gym. In cold weather, the windows to the gym remain closed, and prisoners in the gym are not provided jackets because there is no fresh air.
CLASS ACTION COMPLAINT -11

Case 9:12-cv-00155-DWM Document 1 Filed 09/12/12 Page 12 of 24
35. Many feasible options exist to provide prisoners in HU2 and the JDC access to fresh air and outdoor exercise. MCDF utilizes a large canvas curtain to provide female prisoners with privacy when exercising in the gym. A similar canvas curtain can be utilized to provide female prisoners with access to the outdoor recreation area. In addition, there is a large fenced grass area that is directly accessible from HU2 and the JDC. This area, or a portion of this area, could be used as an outdoor recreation area for HU2 and the JDC.
36. Prisoners in HU2 and the JDC suffer from lack of fresh air and outdoor exercise.
37. Female prisoners can and do spent up to one year at MCDF. For example, Plaintiff Chief Goes Out has been at MCDF with no access to fresh air and outdoor exercise since January 4, 2012. With the exception of an occasional transport to the courthouse, these prisoners are deprived of fresh air and outdoor exercise for their entire period of incarceration at MCDF.
38. Juvenile prisoners can and do spend many months at MCDF. With the exception of an occasional transport to the courthouse, these juvenile prisoners are deprived of fresh air and outdoor exercise for their entire period of incarceration at MCDF.
39. Plaintiffs and other prisoners at MCDF have experienced suffering as a result of being deprived of fresh air, sunlight and outdoor exercise. These
CLASS ACTION COMPLAINT -12

Case 9:12-cv-00155-DWM Document 1 Filed 09/12/12 Page 13 of 24
symptoms include increased stress, lack of energy and lethargy, increased feelings of claustrophobia and anxiety, depression, difficulty sleeping, panic attacks, loss of hair and significant skin problems.
40. Defendants are aware of female and juvenile prisoners suffering from lack of fresh air and outdoor exercise. Many prisoners housed in HU2 and the JDC have verbally requested access to fresh air and outdoor exercise, and defendants have consistently denied these requests. Many prisoners in HU2 and the JDC have filed kites, grievances and appeals requesting fresh air and outdoor exercise. All such kites, grievances and appeals have been denied.
The importance of fresh air and outdoor exercise
41. The importance of fresh air and outdoor exercise to human beings is well-established. As evidenced from the symptoms MCDF female and juvenile prisoners experience, the lack of fresh air and outdoor exercise is detrimental to the psychological and physical well-being of human beings.
42. As such, federal caselaw and federal and corrections organization standards, as well as Montana DOC policy, require that prisons and jails provide daily fresh air and outdoor exercise to prisoners.
43. Existing caselaw has for many years established the constitutional right to fresh air and outdoor exercise. See e.g., Toussaint v. Yockey, 722 F.2d
CLASS ACTION COMPLAINT -13

Case 9:12-cv-00155-DWM Document 1 Filed 09/12/12 Page 14 of 24
1490 (9th Cir. 1984) (affirming temporary restraining order requiring outdoor exercise after concluding denial of outdoor exercise for administrative segregation inmates raised constitutional questions); Spain v. Procunier, 600 F.2d 189 (9th Cir. 1979) (depriving inmates of outdoor exercise for "period of years" was cruel and unusual punishment); Johnson v. Woodford, 336 Fed.Appx. 594, 2009 WL 1452635 (9th Cir. 2009) (holding “because ‘some form of regular outdoor exercise is extremely important to the psychological and physical wellbeing’ of prisoners, this court has repeatedly held that long term deprivation of outdoor exercise can constitute cruel and unusual punishment under the Eighth Amendment” and vacating summary judgment against prisoner for claim that deprivation of outdoor exercise was cruel and unusual); Frazer v. Ward, 426 F.Supp. 1354 (N.D.N.Y. 1977) (deprivation of outdoor exercise for more than 14 days is cruel and unusual punishment; indoor area is not sufficient to provide outdoor exercise); Allen v. Sakai, 40 F.3d 1001, 1004 opinion amended on denial of reh'g, 48 F.3d 1082 (9th Cir. 1994)(finding six week deprivation of outdoor exercise was unconstitutional, and noting “practical difficulties that arise in administering a prison facility from time to time might justify an occasional and brief deprivation of an inmate's opportunity to exercise outside. However, we cannot accept the defendants' excuses as justifying, as a matter of law at the summary judgment stage, the deprivation that took place here”) (emphasis added); Lopez v. Smith, 203 F.3d
CLASS ACTION COMPLAINT -14

Case 9:12-cv-00155-DWM Document 1 Filed 09/12/12 Page 15 of 24
1122, 1133 (9th Cir. 2000)(reversing summary judgment for defendants where plaintiff provided evidence of being deprived of outdoor exercise for six and a half weeks); Keenan v. Hall, 83 F.3d 1083 (9th Cir. 1996) (finding inmate plaintiff produced sufficient evidence to go to trial on deprivation of outdoor exercise claim and “a 8' by 21' by 16' space with a roof, three concrete walls, and a fourth wall of perforated steel admitting sunlight through only the top third” does not constitute outdoor exercise area); Martino v. Carey, 563 F. Supp. 984, 1001 (D. Or. 1983) (“[i]n the present case expert witnesses testified that the denial of all outdoor exercise endangered the physical and mental health of prisoners and led to physical and mental deterioration. I agree with this testimony and find that the denial of exercise violated the Eighth Amendment as to convicted prisoners and imposed a clearly ‘punitive’ condition upon pre-trial detainees.”); Franklin v. State of Oregon, 662 F.2d 1337 (9th Cir. 1981). See also Anderson v. Colorado, 10-CV01005-RBJ-KMT, 2012 WL 3643063, *4 (D. Colo. Aug. 24, 2012) (“recent panels of the Ninth Circuit have indicated that denial of outdoor exercise for 14 months, . . . and even six weeks . . . can be sufficient to support and Eighth Amendment Claim. Other courts outside the Ninth Circuit [have held] that long term denial of outdoor exercise constitutes cruel and unusual punishment”, and “failure to provide reasonable access to the out of doors and outdoor exercise to [plaintiff] constitutes cruel and unusual punishment in violation of the Eighth Amendment”).
CLASS ACTION COMPLAINT -15

Case 9:12-cv-00155-DWM Document 1 Filed 09/12/12 Page 16 of 24

44. Various corrections standards also evidence the well-established

constitutional right to fresh air and outdoor exercise. The State of Montana DOC

Policy Directive regarding Recreation Activities states “General population

inmates shall be granted access to supervised outdoor exercises on a daily basis,

weather permitting, using a variety of equipment.” DOC 5.5.3.IV.B.3, available at

http://www.cor.mt.gov/content/Resources/Policy/Chapter5/5-5-3.pdf.

45. Male prisoners sentenced to the DOC are housed solely in HU1.

However, DOC Policy 5.5.3.IV.B.3 establishes common practice in the state of

Montana. Further, many female pre-trial detainees housed in HU2 ultimately are

sentenced DOC. It is not logical that these prisoners can be deprived of outdoor

exercise prior to sentencing, but cannot be deprived of outdoor exercise after

sentencing. This is particularly true given that they are housed at MCDF as pre-

trial detainees awaiting trial and sentencing for many months.

46. The Federal Performance-Based Detention Standards Handbook is

designed for use in reviewing non-federal facilities that house federal detainees to

ensure these facilities are safe, humane, and protect detainees’ statutory and

constitutional rights. Federal Performance-Based Detention Standard G.5 states

“[t]he Facility Director ensures that staff permit detainees a minimum of one hour

of outdoor recreation five days a week.” These standards are available at

http://www.justice.gov/ofdt/fpbds02232011.pdf.

CLASS ACTION COMPLAINT -16

Case 9:12-cv-00155-DWM Document 1 Filed 09/12/12 Page 17 of 24
47. MCDF houses female and male adult and juvenile federal prisoners pursuant to a contract with the U.S. Marshall. Despite this, federal juvenile and adult prisoners housed in HU2 and the JDC, respectively, are denied outdoor recreation.
48. The American Bar Association Standards for Criminal Justice – Treatment of Prisoners (Third Ed.) state “[e]ach prisoner, including those in segregated housing, should be offered the opportunity for at least one hour per day of exercise, in the open air if the weather permits.” ABA Standard 23-3.6, available at http://www.americanbar.org/content/dam/aba/publications/criminal_justice_stand ards/Treatment_of_Prisoners.authcheckdam.pdf.
49. The American Correctional Association’s (“ACA”) Standards for Adult Correctional Institutions (4th Ed. 2003) state “both outdoor and covered/enclosed exercise areas for general population inmates are provided in sufficient number to ensure that each inmate is offered at least one hour of access daily. Use of outdoor areas is preferred, but covered/enclosed areas must be available for use in inclement weather.” ACA Standard 4-4154.
CLASS ACTION COMPLAINT -17

Case 9:12-cv-00155-DWM Document 1 Filed 09/12/12 Page 18 of 24
COUNT I – DEFENDANTS’ DEPRIVATION OF FRESH AIR AND OUTDOOR EXERCISE CONSTITUTUTES CRUEL AND UNUSUAL PUNISHMENT IN VIOLATION OF THE EIGHTH AMENDMENT OF THE U.S. CONSTITUTION
50. Plaintiffs repeat and re-allege the allegations contained in paragraphs 1 through 49 as fully restated here.
51. As detailed above, the constitutional right to fresh air and outdoor exercise is well-established and has been for many years. Access to fresh air and outdoor exercise is a basic human need. Deprivation of fresh air and outdoor exercise is a serious deprivation of a human need and amounts to inhumane treatment. Despite this, Plaintiffs and other prisoners housed in HU2 and the JDC regularly go many months without any fresh air, direct sunlight or outdoor exercise.
52. Defendants have been deliberately indifferent to plaintiffs’ deprivation of this well-established constitutional right. Defendants have known that HU2 and JDC prisoners are deprived of fresh air and outdoor exercise. Defendants have known that depriving prisoners of fresh air and outdoor exercise detrimentally affects their psychological and physical well-being and is causing them harm. Defendants received multiple verbal complaints, kites, grievances and appeals requesting access to outdoor recreation and detailing the negative impact on prisoners from deprivation of fresh air and outdoor exercise. Defendants
CLASS ACTION COMPLAINT -18

Case 9:12-cv-00155-DWM Document 1 Filed 09/12/12 Page 19 of 24
provide access to fresh air and outdoor exercise for adult male prisoners in HU1 and HU3, thereby understand the importance of providing fresh air and outdoor exercise to prisoners generally. Despite this, defendants continue to deny prisoners in HU2 and the JDC access to fresh air and outdoor exercise.
53. Deprivation of fresh air and outdoor exercise to HU2 and JDC prisoners has no valid penological justification. COUNT II – DEFENDANTS HAVE VIOLATED PLAINTIFFS’ RIGHTS PURSUANT TO THE 14TH AMENDMENT TO THE U.S. CONSTITUTION GUARANTEEING EQUAL PROTECTION
54. Plaintiffs repeat and re-allege the allegations contained in paragraphs 1 through 53 as fully restated here.
55. By their policies and practices described above, Defendants have discriminated against Plaintiffs on the basis of their gender, thereby violating their right to equal protection of the laws. These policies and practices have and continue to be implemented by Defendants and their agents or employees in their official capacities, and are the proximate cause of Plaintiffs’ deprivation of rights secured by the U.S. Constitution under the Fourteenth Amendment.
56. Female prisoners in Housing Unit 2 are similarly situated to male prisoners at MCDF housed in HU1 and HU3. As prisoners incarcerated as both federal and non-federal pre-trial detainees and serving county jail time, female and
CLASS ACTION COMPLAINT -19

Case 9:12-cv-00155-DWM Document 1 Filed 09/12/12 Page 20 of 24
juvenile prisoners and male prisoners are sufficiently similar with respect to their conditions of incarceration. As such, female prisoners at MCDF are equivalent to male prisoners at MCDF.
57. Despite the fact that female prisoners at MCDF are similarly situated to male prisoners at MCDF, female prisoners are subject to unequal treatment resulting from gender discrimination. The only housing unit available for female prisoners in HU2, which does not have an attached outdoor recreation yard. Defendants have refused to move female prisoners to another housing unit to exercise, or build an outdoor recreation yard directly accessible to HU2. As a result, while male prisoners are allowed fresh air and outdoor exercise five days a week, female prisoners are denied any fresh air and outdoor exercise for the entire duration of their incarceration. As such, there is a lack of parity between female and male prisoners.
58. Defendants have repeatedly represented to female prisoners that they receive fresh air and sunlight in the gym. These representations are false. The gym is not an outdoor recreation area. Sunlight shining through a window onto tiny areas of a gym floor is not the equivalent of direct sunlight. Open windows approximately 30 feet above the floor is not the equivalent of fresh air. Regardless, common practice at MCDF is to close the gym windows for most of the year. The outdoor recreation yards available to male prisoners in HU1 and
CLASS ACTION COMPLAINT -20

Case 9:12-cv-00155-DWM Document 1 Filed 09/12/12 Page 21 of 24

HU3 have rain and snow in the winter and are commonly termed “outdoor recreation yards” by MCDF staff. Prisoners are provided with jackets in the winter to go out into the outdoor recreation yard, and often will shovel snow in the outdoor recreation area. Because they are indoor, there is no rain, snow, or direct sunlight in the indoor recreation gyms in HU2 and the JDC.
The lack of fresh air and outdoor exercise has caused and continues to cause a decrease in prisoners’ well-being. Prisoners suffer from many symptoms arising from the lack of fresh air and outdoor exercise, as described in detail above.
59. Gender-neutral alternatives to the current unequal treatment of female and male prisoners are available, rendering the current lack of parity between female and male prisoners unnecessary. For example, defendants could utilize a canvas curtain to provide privacy to female prisoners to utilize the outdoor areas in HU1 and/or HU3. Defendants could also utilize the large fenced grassy areas with direct access to HU2 and the JDC to provide outdoor recreation for prisoners in HU2 and the JDC.
COUNT III – DEFENDANTS’ DENIAL OF FRESH AIR AND OUTDOOR EXERCISE FOR PRISONERS IN HOUSING UNIT 2 AND THE JUVENILE
DETENTION UNIT VIOLATES ARTICLE II, §4 OF THE MONTANA CONSTITUTION

60. Plaintiffs repeat and re-allege the allegations contained in paragraphs

1 through 59 as fully restated here.

CLASS ACTION COMPLAINT -21

Case 9:12-cv-00155-DWM Document 1 Filed 09/12/12 Page 22 of 24

61. Plaintiffs specifically re-allege the allegations set forth in Count II as fully restated here. Based on these allegations, Plaintiffs assert that defendants have engaged in gender discrimination, violated plaintiffs’ human dignity, and denied them equal protection of the laws in violation of Article II, §4 of the Montana Constitution.

COUNT IV – DEFENDANTS’ DEPRIVATION OF FRESH AIR AND OUTDOOR EXERCISE CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT IN VIOLATION OF ARTICLE II, §22 OF THE MONTANA CONSTITUTION

62. Plaintiffs repeat and re-allege the allegations contained in paragraphs

1 through 61 as fully restated here.

63. Plaintiffs specifically re-allege the allegations set forth in Count I as

fully restated here. Based on these allegations, Plaintiffs assert that defendants

have engaged cruel and unusual punishment and violated plaintiffs’ human dignity

in violation of Article II, §22 of the Montana Constitution.

WHEREFORE, Plaintiffs respectfully request that this Court:

A.

Declare the suit is maintainable as a class action pursuant to Federal

Rule of Civil Procedure 23(b)(1)(A) and 23(b)(2);

B.

Declare Defendants have engaged in cruel and unusual punishment in

violation of the Eighth Amendment to the U.S. Constitution by depriving

plaintiffs of fresh air and outdoor exercise;

CLASS ACTION COMPLAINT -22

Case 9:12-cv-00155-DWM Document 1 Filed 09/12/12 Page 23 of 24

C.

Declare Defendants have engaged in cruel and unusual punishment in

violation of Article II, 22 of the Montana Constitution by depriving

plaintiffs of fresh air and outdoor exercise;

D.

Declare Defendants have violated the rights guaranteed to Plaintiffs

under the Fourteenth Amendment to the U.S. Constitution by depriving

female prisoners of fresh air and outdoor exercise while providing male

prisoners access to fresh air and outdoor exercise;

E.

Declare Defendants have violated the rights guaranteed to Plaintiffs

under Article II, §4 of the Montana Constitution by depriving female

prisoners of fresh air and outdoor exercise while providing male

prisoners access to fresh air and outdoor exercise;

F.

Issue an Order: (i) directing Defendants, their successors and other

current and future employees of Missoula County to provide prisoners in

Housing Unit 2 and the Juvenile Unit with access to fresh air and

outdoor exercise for one hour five days per week;

G.

Award Plaintiffs their costs and reasonable attorneys’ fees pursuant to 42

U.S.C. §1988.

Dated this 12th day of September, 2012.

/s/ Anna Conley
CLASS ACTION COMPLAINT -23

Case 9:12-cv-00155-DWM Document 1 Filed 09/12/12 Page 24 of 24
ACLU of Montana Foundation [s] Greg Munro ______________________ Greg Munro, Attorney-at-Law ATTORNEYS FOR PLAINTIFFS
CLASS ACTION COMPLAINT -24

 
 Case 9:12-cv-00155-DWM Document 11 Filed 10/17/12 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT 


FOR THE DISTRICT OF MONTANA 


MISSOULA DIVISION 


LAURNA CHIEF GOES OUT, LYNDA, )

FRENCH, and BRANDY BURKOWSKI, ) 


on behalf ofthemse1ves and all others

) 


siIIlilarl), sittlated,

)

)

Plaintiffs,

)

)

vs.

)

)

MISSOULA COUNTY, CARL IBSEN, )

JASON KOWALSKI, MARK FOSS, and )

MARK HARRIS,

)

)

)

-------------------------)

CV 12-1 55-M-DWM 


ORDER

FILED
OCT 17 2012
CIet1c. U,S 0i8trlct Court 0i8trlct 01 Montana MIeaouIa

The plaintiffs filed a class action cOIIlplaint on SepteIIlber 12,2012. The)'

IIlove for class certification. The defendants did not file a response in opposition,

consequentl)' the plaintiffs' IIlotion for certification is granted.

The naIIled plaintiffs are prisoners incarcerated at the Missoula Count)'

Detention Facilit)' and housed in Housing Unit 2 or in the Juvenile Detention

Center. The)' claim that the defendants are unconstitutionall), den)'ing theIIl fresh

air and outdoor exercise.

The plaintiffs ask the court to certifY a class consisting of:

all current and future prisoners housed in Housing Unit 2 and the Juvenile Detention Center at the Missoula Count)' Detention Facilit)' for
I 


----- ------ - - - -
Case 9:12-cv-00155-DWM Document 11 Filed 10/17/12 Page 2 of 8
a period of one montn or longer who are claiming defendants have inflicted cruel and unusual punishment by denying them fresh air and outdoor exercise.
They also ask the Court to certify a subclass consisting of:
all female prisoners housed in Housing Unit 2 who are claiming defendants have violated their right to equal protection by denying them fresh air and outdoor exercise.
ANALYSIS
For a class to be certified, the identified group must meet each of the
requirements of Federal Rule of Civil Procedure 23(a) and one of the three
subsections of Rule 23(b). The Supreme Court described the Rule 23(a)
requirements as follows:
Rule 23(a) states four threshold requirements applicable to all class actions: (1) numerosity (a 'class [so large] that joinder of all members is impracticable'); (2) commonality (,questions oflaw or fact common to the class'); (3) typicality (named parties' claims or defenses 'are typical . . . of the class'); and (4) adequacy of representation (representatives 'will fairly and adequately protect the interests of the class').
Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613 (1997). Rule 23(b) then sets
out the type of class actions that can be maintained. In this case the proposed class
satisfies the requirements of both Rule 23(a) and Rule 23(b).
I. Rule 23(a) requirements
A. Numerosity
The numerosity requirement is met when "the class is so numerous that
2 


Case 9:12-cv-00155-DWM Document 11 Filed 10/17/12 Page 3 of 8
joinder of all parties is impractical." Fed. R Civ. P. 23(a)(I). As this Court observed in Alexander v. lBC Legal Group, P.e., 237 F.RD. 628, 630-31 (D. Mont. 2006):
The Ninth Circuit has vacated certification on numerosity grounds where a class consisted of ten members or less, and it has noted the Supreme Court's holding in General Telephone Company v. EEOC, 446 U.S. 318, 330, 100 S.Ct. 1698,64 L.Ed.2d 319 (1980), that a class consisting of fifteen members is too small to meet the numerosity requirement. See Harik v. Cal. TeachersAss'n, 326F.3d 1042,1051 (9th Cir.2003). That being said, a small class may still satisfy the numerosity requirement where, as here, the class includes both ascertainable members and a fluid composition of future, unidentified members. See e.g. McMillon v. Hawaii, 261 F.RD. 536, 543 (D. Hawaii 2009) (finding the numerosity requirement satisfied where the proposed class consisted of 10 identifiable members, as well as future, unidentified members). The Southern District of New York explained that, in the prison context: "The fluid composition of a prison population is particularly wellsuited for class status, because, although the identity of the individuals involved may change, the nature of the wrong and the basic parameters of the group affected remain constant." Dean v. Coughlin, 107 F.RD. 331, 332-33 (S.D.N.Y. 1985). Here, the plaintiffs do not identify a specific number of ascertainable class members, but they sunnise that they number at least 27 members. Naturally, this
3 


Case 9:12-cv-00155-DWM Document 11 Filed 10/17/12 Page 4 of 8
number changes daily as the Detention Facility receives and releases inmates. As a result, the plaintiffs have included future inmates in their proposed class and subclass definitions. In light of the Detention Facility's "fluid composition" and the likelihood of future, unidentified inmates who meet the class and subclass parameters, the proposed class satisfies the numerosity requirement. See id.
B. Commonality If there are questions of fact and law that are common to the class, the commonality requirement has been met. Fed. R. Civ. P. 23(a)(2). Rule 23(a)(2) is construed permissively and is satisfied even if all questions of fact and law are not identical. See Hanlon v. Chrysler Corp., 150 F.3d 1011, lO19-20 (9th Cir. 1998). As long as the class members' claims arise from the same source and raise at least some of the same legal issues, the plaintiffs have met the minimal requirements of Rule 23(a)(2). Id. The commonality requirement is met here because the plaintiffs and proposed class have all allegedly suffered the same injury: "deprivation of access to fresh air and outdoor exercise for a period of one month or more." The resolution oftheir alleged injury will requires confronting common questions of fact and law. Fed. R. Civ. P. 23(a)(2).
C. Typicality
4 


Case 9:12-cv-00155-DWM Document 11 Filed 10/17/12 Page 5 of 8
Rule 23(a)(3) requires that the "claims or defenses of the representative parties are typical of the claims or defenses of the class." "Under the rule's permissive standards, representative claims are 'typical' if they are reasonably coextensive with those of absent class members; they need not be substantially identical." Hanlon, 150 F.3d at 1020. Here, the claims ofthe named, representative parties are the same as those of the proposed class, so this element is met. See Hanon v. Dataproducts Corp., 976 F.2d 497,508 (9th Cir. 1992) (holding that the typicality requirement is satisfied when class members have similar injuries, the action is based on the same underlying conduct that is not unique to the named plaintiffs, and other class members were injured by the same conduct).
D. Adequacy of representation Rule 23(a)(4) requires that "the representative parties will fairly and adequately protect the interests of the class." There are two issues to consider in determining adequacy of representation: (1) do the named plaintiffs and their counsel have any conflicts of interest with other class members and (2) will the named plaintiffs and their counsel prosecute the action vigorously on behalf of the class? Han/on, 150 F.3d at 1020 (citing Lerwill v. Inflight Motion Pictures, Inc., 582 F.2d 507, 512 (9th Cir. 1978». First, the named plaintiffs here have not identified any conflicts of interest,
5 


Case 9:12-cv-00155-DWM Document 11 Filed 10/17/12 Page 6 of 8
and the defendants have not, as noted above, filed a brief identifying any conflicts. Second, the plaintiffs' counsel are both qualified and experienced attorneys.
There is no question that counsel will "prosecute the action vigorously on behalf ofthe class." Id. II. Rule 23(b) requirements
In addition to the requirements of Rule 23(a), a proposed class must also meet one of the three requirements of Rule 23(b). The plaintiffs argue the proposed class satisfies both Rule 23(b)(I)(A) and Rule 23(b)(2). It is unnecessary to address whether the proposed class satisfies Rule 23(b)(I)(A) because it satisfies Rule 23(b)(2).
Rule 23(b)(2) states: A class action may be maintained ifRule 23 (a) is satisfied and if: ... the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole .... Stated differently, certification under Rule 23(b)(2) is appropriate "when a single, indivisible remedy would provide relief to each class member." Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2545 (2011). In the penal context, Rule 23(b)(2) certification is a common avenue for enabling a class of prisoners to challenge the constitutionality of prison conditions. See e.g. Riker v. Gibbons, 2009 WL 910971 at *5 (D. Nev. March 31,
6 


Case 9:12-cv-00155-DWM Document 11 Filed 10/17/12 Page 7 of 8
2009) (citing 7AA Charles Alan Wright et aI., Federal Practice and Procedure § 1776, at 112 n.18 (3d ed. 2005) (collecting cases where Rule 23(b)(2) class actions were used to challenge prison policies or procedures alleged to violate prisoners' Eighth Amendment right to be free from cruel and unusual punishment)).
The proposed class here satisfies Rule 23(b)(2)'s requirements because "a single, indivisible remedy would provide relief to each class member." Wal-Mart Stores, Inc., 131 S. Ct. at 2545. A favorable ruling for the proposed class would mean a remedy for the class and subclass with access to fresh air and outdoor exercise. That single remedy would provide relief to all members of the class.
CONCLUSION
The proposed class and subclass satisfy the four requirements of Rule 23(a), and they meet the requirements of Rule 23(b)(2). The Court therefore certifies the proposed class and subclass.
IT IS ORDERED that the plaintiffs' motion for class certification (doc. 3) is GRANTED. The Court certifies the class consisting of:
all current and future prisoners housed in Housing Unit 2 and the Juvenile Detention Center at the Missoula County Detention Facility for a period of one month or longer who are claiming defendants have inflicted cruel and unusual punishment by denying them fresh air and outdoor exercise. IT IS FURTHER ORDERED that the Court certifies the subclass consisting of: female prisoners housed in Housing Unit 2 who are claiming defendants
7 


Case 9:12-cv-00155-DWM Document 11 Filed 10/17/12 Page 8 of 8
have violated their right to equal protection by denying them fresh air and outdoor exercise. IT IS FURTHER ORDERED that Anna Conley and Greg Munro are appointed as class counseL See Fed. R. Civ. P. 23(g)(1)(B), (C). Dated this Jiday of October 2012.
olloy, District Judge District Court
L
8 


 
 Case 9:12-cv-00155-DWM Document 27 Filed 12/03/12 Page 1 of 27

Anna Conley ACLU of Montana Foundation P.O. Box 9138 Missoula, MT 59807 Telephone: (406) 443-8590, Ext. 3056 Email: annac@aclumontana.org

Greg Munro Attorney-at-law 3343 Hollis Street Missoula, MT 59801 Telephone: (406) 207-8267 Email: gregory_munro@yahoo.com

ATTORNEYS FOR PLAINTIFFS

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA MISSOULA DIVISION

LAURNA CHIEF GOES OUT, LYNDA )

FRENCH, BRANDY BURKOWSKI, and ) No. CV 12-155-M-DWM

DAWN MORRIS AS NEXT FRIEND )

AND NATURAL MOTHER OF HER

)

MINOR SON D.M, on behalf of

) CLASS ACTION

themselves and all others similarly

)

situated,

) SECOND AMENDED

Plaintiffs,

) COMPLAINT )

)

vs.

)

)

MISSOULA COUNTY, CARL IBSEN, )

JASON KOWALSKI, MARK FOSS,

)

AND MARK HARRIS,

)

)

Defendants.

)

)

CLASS ACTION SECOND AMENDED COMPLAINT -1

Case 9:12-cv-00155-DWM Document 27 Filed 12/03/12 Page 2 of 27
INTRODUCTION Plaintiffs are prisoners, including convicted prisoners and pre-trial detainees, incarcerated at the Missoula County Detention Facility (“MCDF”) in Missoula, Montana. While adult male prisoners are allowed daily outdoor exercise, juvenile and female prisoners at MCDF are denied any fresh air or outdoor exercise, and have spent up to a year with no fresh air, direct sunlight or outdoor exercise. Plaintiffs bring this action on behalf of themselves and all similarly situated prisoners housed in Housing Unit 2 and the Juvenile Detention Center for one month or more who are denied fresh air and outdoor exercise for a prolonged period of time. Plaintiffs are guaranteed the right to be free from cruel and unusual punishment, and are entitled to the equal protection rights set forth in the U.S. and Montana Constitutions. Defendants have violated both of these rights through prolonged deprivation of fresh air and outdoor exercise for prisoners housed in Housing Unit 2 and the Juvenile Detention Center in MCDF. Defendants’ prolonged denial of fresh air and outdoor exercise has negatively impacted Plaintiffs’ psychological and physical well-being. Prisoners at MCDF uniformly report increased anxiety, depression, panic attacks, sleep problems, skin problems, loss of hair, and vitamin D deficiencies as a result of deprivation of fresh air and outdoor exercise. Defendants have been repeatedly
CLASS ACTION SECOND AMENDED COMPLAINT -2

Case 9:12-cv-00155-DWM Document 27 Filed 12/03/12 Page 3 of 27
made aware of these prisoners’ suffering, and continue to deny them fresh air and outdoor exercise.
NATURE OF THE ACTION 1. Plaintiffs bring Count I of this action pursuant to 42 U.S.C. §1983 to redress violations of Plaintiffs’ rights under the Fourteenth Amendment to the U.S. Constitution to receive equal protection while incarcerated at MCDF. In connection with Count I, Plaintiffs seek injunctive and declaratory relief against Defendants Carl Ibsen, Jason Kowalski, Mark Harris and Mark Foss in their official capacities, as well as attorneys’ fees and costs. 2. Plaintiffs bring Count II of this action pursuant to 42 U.S.C. §1983 to redress violations of Plaintiffs’ rights under the Eighth Amendment to the U.S. Constitution to be free from cruel and unusual punishment. In connection with Count II, Plaintiffs seek injunctive and declaratory relief against Defendants Carl Ibsen, Jason Kowalski, Mark Harris and Mark Foss in their official capacities, as well as attorneys’ fees and costs. 3. Plaintiffs bring Count III of this action to redress violations of Article II, §4 of the Montana Constitution, which guarantees equal protection of the laws, prohibits discrimination on the basis of sex and prohibits violations to human dignity. In connection with Count III, Plaintiffs seek injunctive and declaratory
CLASS ACTION SECOND AMENDED COMPLAINT -3

Case 9:12-cv-00155-DWM Document 27 Filed 12/03/12 Page 4 of 27
relief against Defendants Carl Ibsen, Jason Kowalski, Mark Harris and Mark Foss in their official capacities, as well as attorneys’ fees and costs.
4. Plaintiffs bring Count IV of this action to redress violations of Article II, §22 of the Montana Constitution which prohibits the infliction of cruel and unusual punishment. In connection with Count IV, Plaintiffs seek injunctive and declaratory relief against Defendants Carl Ibsen, Jason Kowalski, Mark Harris and Mark Foss in their official capacities, as well as attorneys’ fees and costs.
5. Plaintiffs bring Count V of this action pursuant to 42 U.S.C. §1983 to redress violations of Plaintiffs’ rights under the Fourteenth Amendment to the U.S. Constitution to be free from punishment prior to the adjudication of guilt. In connection with Count V, Plaintiffs seek injunctive and declaratory relief against Defendants Carl Ibsen, Jason Kowalski, Mark Harris and Mark Foss in their official capacities, as well as attorneys’ fees and costs.
6. Plaintiffs bring Count VI of this action to redress violations of Article II, §17 of the Montana Constitution, which prohibits punishment prior to the adjudication of guilt. In connection with Count VI, Plaintiffs seek injunctive relief against Defendants Carl Ibsen, Jason Kowalski, Mark Harris and Mark Foss in their official capacities, as well as attorneys’ fees and costs.
JURISDICTION AND VENUE
CLASS ACTION SECOND AMENDED COMPLAINT -4

Case 9:12-cv-00155-DWM Document 27 Filed 12/03/12 Page 5 of 27
7. Jurisdiction is conferred upon this Court for Counts I, II and V pursuant to 28 U.S.C. 1331 and 28 U.S.C. 1343 because the matters in controversy arise under the Constitution and the laws of the United States.
8. Supplemental jurisdiction is conferred upon this Court for Counts III, IV and VI pursuant to 28 U.S.C. 1367.
9. Venue is proper in this Court under 28 U.S.C. §1391(b) because a substantial part of the events that give rise to Plaintiffs’ claims took place in Missoula, Montana.
10. This Court has authority pursuant to 42 U.S.C. 1983 to order injunctive and declaratory relief, and has authority under 42 U.S.C. §1988 to award attorney fees and costs to successful civil rights plaintiffs.
PARTIES 11. Plaintiff Laurna Chief Goes Out is a female prisoner awaiting trial and sentencing. Ms. Chief Goes Out has been at MCDF with no access to fresh air and outdoor exercise since January 4, 2012. Ms. Chief Goes Out has experienced decreased physical and psychological well-being as a result of being deprived of fresh air and outdoor exercise for over 8 months. Ms. Chief Goes Out has experienced increased depression, a lack of energy and overwhelming feeling of lethargy and despondency, hair loss, skin problems, and a general decline in her
CLASS ACTION SECOND AMENDED COMPLAINT -5

Case 9:12-cv-00155-DWM Document 27 Filed 12/03/12 Page 6 of 27
sense of physical and psychological well-being as a result of being deprived of fresh air and outdoor exercise.
12. Plaintiff Lynda French is a female prisoner being held in MCDF as a federal prisoner in the custody of the U.S. Marshall awaiting sentencing. Ms. French has been held at MCDF since April 2, 2012. On June 6, 2012, in Ms. French’s criminal case, the U.S. District Court for the District of Montana accepted Ms. French’s plea of guilty to one count of violating federal law. On September 12, 2012, the U.S. District Court for the District of Montana entered a judgment adjudicating Ms. French guilty of 21 U.S.C. 841(a)(1) and sentenced her accordingly.
13. The Federal Performance-Based Detention Standards require nonfederal facilities housing federal inmates to provide inmates with daily outdoor exercise. Despite this, Ms. French has not been outside for the entire duration of her incarceration at MCDF, which exceeds five months. Ms. French has experienced depression, panic attacks, increased anxiety, lethargy, difficulty regulating her temperature, weight gain, hair loss, skin problems and a general decline in her sense of physical and psychological well-being as a result of being deprived of fresh air and outdoor exercise.
14. Plaintiff Brandy Burkowski is a female prisoner being held in MCDF as a federal prisoner in the custody of the U.S. Marshall awaiting sentencing. Ms.
CLASS ACTION SECOND AMENDED COMPLAINT -6

Case 9:12-cv-00155-DWM Document 27 Filed 12/03/12 Page 7 of 27
Burkowski has been held at MCDF since July 10, 2012. On July 30, 2012, in Ms. Burkowski’s criminal case, this Court adopted Judge Lynch’s Findings and Recommendations to accept Ms. Burkowski’s guilty plea to one count of violation of federal law. On October 19, 2012, this Court entered a judgment adjudicating Ms. Burkowski guilty of 21 U.S.C. §846 and sentenced her accordingly.
15. The Federal Performance-Based Detention Standards require nonfederal facilities housing federal inmates to provide inmates with daily outdoor exercise. Despite this, Ms. Burkowski has not been outside for the entire duration of her incarceration at MCDF, which exceeds two months. Ms. Burkowski has experienced depression, increased anxiety, lethargy, skin problems, hair loss and a general decline in her sense of physical and psychological well-being as a result of being deprived of fresh air and outdoor exercise.
16. Plaintiff Dawn Morris is the natural mother and legal guardian of her son D.M. D.M. is a minor who has been incarcerated in the Juvenile Wing of MCDF since May 23, 2012. He has had no access to fresh air or outdoor exercise for the duration of his incarceration at MCDF, which exceeds four months. As a minor, D.M. is unable to sue on his on behalf. Plaintiff Dawn Morris is truly dedicated to D.M.’s best interests and has a significant relationship with him. D.M. has experienced depression, increased anxiety and stress, skin problems, and a
CLASS ACTION SECOND AMENDED COMPLAINT -7

Case 9:12-cv-00155-DWM Document 27 Filed 12/03/12 Page 8 of 27
general decline in his sense of physical and psychological well-being as a result of being deprived of fresh air and outdoor exercise.
17. Defendant Carl Ibsen is and at all relevant times has been the Missoula County Sheriff responsible for running MCDF.
18. Defendant Jason Kowalski is and at all relevant times has been the Captain of MCDF in charge of overseeing MCDF and the day-to-day operations at MCDF. Captain Kowalski responds to appeals from prisoners whose grievances have been denied. Captain Kowalski has denied multiple appeals from prisoners requesting access to fresh air and outdoor exercise.
19. Defendant Mark Foss is and at all relevant times has been the Chief Detention Officer at MCDF who aids the Captain in overseeing MCDF and the day-to-day operations at MCDF. Sergeant Foss responds to prisoners’ kites and grievances, and has denied kites and grievances from prisoners requesting access to fresh air and outdoor exercise.
20. Defendant Mark Harris is and at all relevant times has been the Sergeant at MCDF who aids the Captain in overseeing MCDF and the day-to-day operations at MCDF. Sergeant Harris responds to prisoners’ kites and grievances, and has denied multiple kites and grievances from prisoners requesting access to fresh air and outdoor exercise.
CLASS ACTION SECOND AMENDED COMPLAINT -8

Case 9:12-cv-00155-DWM Document 27 Filed 12/03/12 Page 9 of 27
21. It has been well established for many years through federal caselaw and multiple jail and prison standards that prisoners cannot be deprived of fresh air and outdoor exercise. By depriving prisoners at MCDF of fresh air and outdoor exercise for prolonged periods of time, Defendants Ibsen, Kowalski, Foss and Harris have violated this well-established law. Through numerous verbal requests, kites, grievances, appeals, and correspondence between Plaintiffs’ counsel and defendants, Defendants Ibsen, Kowalski, Foss and Harris have been made aware of a substantial risk of serious harm to prisoners at MCDF, and have not taken reasonable measures available to them to alleviate that risk.
22. It has been well-established for many years that similarly situated prisoners must receive parity of services and opportunities.
23. Acting under the color of state law, Defendants Ibsen, Kowalski, Foss and Harris have acted with discriminatory intent and taken action they knew or reasonably should have known would violate Plaintiffs’ right to equal protection by denying female and juvenile prisoners access to fresh air and outdoor exercise.
24. Defendants Ibsen, Kowalski, Foss and Harris have personally participated in violations of Plaintiffs’ equal protection rights.
25. Defendants Ibsen, Kowalski, Foss and Harris have aware of prisoners’ suffering and symptoms arising from a lack of fresh air and outdoor exercise. For months, juvenile and female prisoners have filed kites, grievances and appeals
CLASS ACTION SECOND AMENDED COMPLAINT -9

Case 9:12-cv-00155-DWM Document 27 Filed 12/03/12 Page 10 of 27
requesting fresh air and outdoor exercise, which defendants have consistently denied. These kites, grievances and appeals have explained the lack of fresh air and sunlight in the gym, and set forth many symptoms female and juvenile prisoners have suffered from the lack of fresh air and outdoor exercise. Prisoners’ symptoms that Defendants Ibsen, Kowalski, Foss and Harris are aware of include increased stress, depression and anxiety, panic attacks, loss of hair, skin problems and vitamin D deficiency.
26. Acting under the color of state law, Defendants Ibsen, Kowalski, Foss and Harris have taken action they knew or reasonably should have known would violate Plaintiffs’ right to be free from cruel and unusual punishment by denying female and juvenile prisoners access to fresh air and outdoor exercise.
27. Defendants Ibsen, Kowalski, Foss and Harris have personally participated in violations of Plaintiffs’ right to be free from cruel and unusual punishment.
28. With regard to all counts, Plaintiffs name Defendants Ibsen, Kowalski, Foss and Harris in their official capacity.
29. Defendant Missoula County is the local government entity responsible for maintaining a jail. The housing policy and procedure of MCDF denies prisoners housed in Housing Unit 2 and the Juvenile Detention Center access to fresh air and outdoor exercise. By allowing MCDF to maintain this housing policy
CLASS ACTION SECOND AMENDED COMPLAINT -10

Case 9:12-cv-00155-DWM Document 27 Filed 12/03/12 Page 11 of 27
and procedure, Defendant Missoula County has violates plaintiffs’ constitutional rights.
GENERAL ALLEGATIONS Missoula County Detention Facility Housing Units
30. The Missoula County Detention Facility (“MCDF”) opened in 1999, replacing the previous county jail on the fourth floor of the courthouse annex. MCDF’s total capacity is approximately 396.
31. MCDF houses adults in three Housing Units, Housing Unit 1 (“HU1”), Housing Unit 2 (“HU2”), and Housing Unit 3 (“HU3”). MCDF houses juvenile prisoners in a Juvenile Detention Center (“JDC”).
32. Each housing unit has 6 pods, A, B, C, D, E & F. 33. HU1 holds only adult males incarcerated in the Missoula Assessment and Sanction Center (“MASC”). Prisoners in HU1 are sentenced to the Department of Corrections (“DOC”), and are in MASC to be “assessed” for appropriate placement in a DOC facility, such as the Montana State Prison, a regional prison, Crossroads Correctional Center, or a community corrections program. If an adult male sentenced to the DOC is on parole violates the parole, he may be sent to MASC for a short “sanction”’ then go back out on parole. 34. Pods E and F in HU2 house female prisoners sentenced to county jail time, and female prisoners awaiting trial and sentencing for federal and state law
CLASS ACTION SECOND AMENDED COMPLAINT -11

Case 9:12-cv-00155-DWM Document 27 Filed 12/03/12 Page 12 of 27
charges. HU2 is the only housing unit that holds adult female prisoners. HU1 and HU3 do not hold any adult female prisoners. Pods C and D in HU2 house male and female prisoners in administrative segregation, and can hold female prisoners temporarily when Pods E and F are full. Pods A and B house male prisoners sentenced to county jail time and male prisoners awaiting trial and sentence. Male prisoners in pods A and B in HU2 can also be housed in HU3.
35. HU3 holds only male prisoners sentenced to county jail time and male prisoners awaiting trial and sentence.
36. The JDC holds up to 25 female and male juvenile prisoners. Prisoners in HU2 and JDC are denied fresh air and outdoor exercise
37. Both HU1 and HU3 have a nearly identical outdoor recreation area. Prisoners in HU1 and HU3 have access to this outdoor area five hours each week.
38. Each outdoor area has a mesh grate across the top, but no ceiling. Prisoners in this outdoor area breathe and exercise in fresh air. It rains and snows in this outdoor area. Prisoners in this outdoor area feel direct sunlight. In cold weather, prisoners in HU1 and HU3 are provided jackets to go outside to this outdoor area. In tours of the facility, prison administrators describe this area as the “outdoor rec area”.
CLASS ACTION SECOND AMENDED COMPLAINT -12

Case 9:12-cv-00155-DWM Document 27 Filed 12/03/12 Page 13 of 27

39. There is no outdoor recreation area in HU2 or JDC. The only area for

recreation in HU2 and JDC is an indoor gym that is similar in both HU2 and JDC.

This gym has approximately five windows approximately 20 - 30 feet high. The

windows are closed from approximately October through May each year.

Prisoners in the gym cannot feel direct sunlight. During certain times of day,

sunlight shines through the windows on very small areas of the gym floor. Female

prisoners sometimes take turns standing in these small areas to try to feel sunlight

through the window glass on a portion of their face or body. Because this area is

indoors with a ceiling, it does not rain or snow in the gym. In cold weather, the

windows to the gym remain closed, and prisoners in the gym are not provided

jackets because there is no fresh air.

40. Many feasible options exist to provide prisoners in HU2 and the JDC

access to fresh air and outdoor exercise. MCDF utilizes a large canvas curtain to

provide female prisoners with privacy when exercising in the gym. A similar

canvas curtain can be utilized to provide female prisoners with access to the

outdoor recreation area. In addition, there is a large fenced grass area that is

directly accessible from HU2 and the JDC. This area, or a portion of this area,

could be used as an outdoor recreation area for HU2 and the JDC.

41. Prisoners in HU2 and the JDC suffer from lack of fresh air and

outdoor exercise.

CLASS ACTION SECOND AMENDED COMPLAINT -13

Case 9:12-cv-00155-DWM Document 27 Filed 12/03/12 Page 14 of 27
42. Female prisoners can and do spent up to one year at MCDF. For example, Plaintiff Chief Goes Out has been at MCDF with no access to fresh air and outdoor exercise since January 4, 2012. With the exception of an occasional transport to the courthouse, these prisoners are deprived of fresh air and outdoor exercise for their entire period of incarceration at MCDF.
43. Juvenile prisoners can and do spend many months at MCDF. With the exception of an occasional transport to the courthouse, these juvenile prisoners are deprived of fresh air and outdoor exercise for their entire period of incarceration at MCDF.
44. Plaintiffs and other prisoners at MCDF have experienced suffering as a result of being deprived of fresh air, sunlight and outdoor exercise. These symptoms include increased stress, lack of energy and lethargy, increased feelings of claustrophobia and anxiety, depression, difficulty sleeping, panic attacks, loss of hair and significant skin problems.
45. Defendants are aware of female and juvenile prisoners suffering from lack of fresh air and outdoor exercise. Many prisoners housed in HU2 and the JDC have verbally requested access to fresh air and outdoor exercise, and defendants have consistently denied these requests. Many prisoners in HU2 and the JDC have filed kites, grievances and appeals requesting fresh air and outdoor exercise. All such kites, grievances and appeals have been denied.
CLASS ACTION SECOND AMENDED COMPLAINT -14

Case 9:12-cv-00155-DWM Document 27 Filed 12/03/12 Page 15 of 27
The importance of fresh air and outdoor exercise 46. The importance of fresh air and outdoor exercise to human beings is well-established. As evidenced from the symptoms MCDF female and juvenile prisoners experience, the lack of fresh air and outdoor exercise is detrimental to the psychological and physical well-being of human beings. 47. As such, federal caselaw and federal and corrections organization standards, as well as Montana DOC policy, require that prisons and jails provide daily fresh air and outdoor exercise to prisoners. 48. Existing caselaw has for many years established the constitutional right to fresh air and outdoor exercise. See e.g., Toussaint v. Yockey, 722 F.2d 1490 (9th Cir. 1984) (affirming temporary restraining order requiring outdoor exercise after concluding denial of outdoor exercise for administrative segregation inmates raised constitutional questions); Spain v. Procunier, 600 F.2d 189 (9th Cir. 1979) (depriving inmates of outdoor exercise for "period of years" was cruel and unusual punishment); Johnson v. Woodford, 336 Fed.Appx. 594, 2009 WL 1452635 (9th Cir. 2009) (holding “because ‘some form of regular outdoor exercise is extremely important to the psychological and physical wellbeing’ of prisoners, this court has repeatedly held that long term deprivation of outdoor exercise can constitute cruel and unusual punishment under the Eighth Amendment” and vacating summary judgment against prisoner for claim that deprivation of outdoor
CLASS ACTION SECOND AMENDED COMPLAINT -15

Case 9:12-cv-00155-DWM Document 27 Filed 12/03/12 Page 16 of 27
exercise was cruel and unusual); Frazer v. Ward, 426 F.Supp. 1354 (N.D.N.Y. 1977) (deprivation of outdoor exercise for more than 14 days is cruel and unusual punishment; indoor area is not sufficient to provide outdoor exercise); Allen v. Sakai, 40 F.3d 1001, 1004 opinion amended on denial of reh'g, 48 F.3d 1082 (9th Cir. 1994)(finding six week deprivation of outdoor exercise was unconstitutional, and noting “practical difficulties that arise in administering a prison facility from time to time might justify an occasional and brief deprivation of an inmate's opportunity to exercise outside. However, we cannot accept the defendants' excuses as justifying, as a matter of law at the summary judgment stage, the deprivation that took place here”) (emphasis added); Lopez v. Smith, 203 F.3d 1122, 1133 (9th Cir. 2000)(reversing summary judgment for defendants where plaintiff provided evidence of being deprived of outdoor exercise for six and a half weeks); Keenan v. Hall, 83 F.3d 1083 (9th Cir. 1996) (finding inmate plaintiff produced sufficient evidence to go to trial on deprivation of outdoor exercise claim and “a 8' by 21' by 16' space with a roof, three concrete walls, and a fourth wall of perforated steel admitting sunlight through only the top third” does not constitute outdoor exercise area); Martino v. Carey, 563 F. Supp. 984, 1001 (D. Or. 1983) (“[i]n the present case expert witnesses testified that the denial of all outdoor exercise endangered the physical and mental health of prisoners and led to physical and mental deterioration. I agree with this testimony and find that the denial of
CLASS ACTION SECOND AMENDED COMPLAINT -16

Case 9:12-cv-00155-DWM Document 27 Filed 12/03/12 Page 17 of 27
exercise violated the Eighth Amendment as to convicted prisoners and imposed a clearly ‘punitive’ condition upon pre-trial detainees.”); Franklin v. State of Oregon, 662 F.2d 1337 (9th Cir. 1981). See also Anderson v. Colorado, 10-CV01005-RBJ-KMT, 2012 WL 3643063, *4 (D. Colo. Aug. 24, 2012) (“recent panels of the Ninth Circuit have indicated that denial of outdoor exercise for 14 months, . . . and even six weeks . . . can be sufficient to support and Eighth Amendment Claim. Other courts outside the Ninth Circuit [have held] that long term denial of outdoor exercise constitutes cruel and unusual punishment”, and “failure to provide reasonable access to the out of doors and outdoor exercise to [plaintiff] constitutes cruel and unusual punishment in violation of the Eighth Amendment”).
49. Various corrections standards also evidence the well-established constitutional right to fresh air and outdoor exercise. The State of Montana DOC Policy Directive regarding Recreation Activities states “General population inmates shall be granted access to supervised outdoor exercises on a daily basis, weather permitting, using a variety of equipment.” DOC 5.5.3.IV.B.3, available at http://www.cor.mt.gov/content/Resources/Policy/Chapter5/5-5-3.pdf.
50. Male prisoners sentenced to the DOC are housed solely in HU1. However, DOC Policy 5.5.3.IV.B.3 establishes common practice in the state of Montana. Further, many female pre-trial detainees housed in HU2 ultimately are sentenced DOC. It is not logical that these prisoners can be deprived of outdoor
CLASS ACTION SECOND AMENDED COMPLAINT -17

Case 9:12-cv-00155-DWM Document 27 Filed 12/03/12 Page 18 of 27
exercise prior to sentencing, but cannot be deprived of outdoor exercise after sentencing. This is particularly true given that they are housed at MCDF as pretrial detainees awaiting trial and sentencing for many months.
51. The Federal Performance-Based Detention Standards Handbook is designed for use in reviewing non-federal facilities that house federal detainees to ensure these facilities are safe, humane, and protect detainees’ statutory and constitutional rights. Federal Performance-Based Detention Standard G.5 states “[t]he Facility Director ensures that staff permit detainees a minimum of one hour of outdoor recreation five days a week.” These standards are available at http://www.justice.gov/ofdt/fpbds02232011.pdf.
52. MCDF houses female and male adult and juvenile federal prisoners pursuant to a contract with the U.S. Marshall. Despite this, federal juvenile and adult prisoners housed in HU2 and the JDC, respectively, are denied outdoor recreation.
53. The American Bar Association Standards for Criminal Justice – Treatment of Prisoners (Third Ed.) state “[e]ach prisoner, including those in segregated housing, should be offered the opportunity for at least one hour per day of exercise, in the open air if the weather permits.” ABA Standard 23-3.6, available at
CLASS ACTION SECOND AMENDED COMPLAINT -18

Case 9:12-cv-00155-DWM Document 27 Filed 12/03/12 Page 19 of 27
http://www.americanbar.org/content/dam/aba/publications/criminal_justice_stand ards/Treatment_of_Prisoners.authcheckdam.pdf.
54. The American Correctional Association’s (“ACA”) Standards for Adult Correctional Institutions (4th Ed. 2003) state “both outdoor and covered/enclosed exercise areas for general population inmates are provided in sufficient number to ensure that each inmate is offered at least one hour of access daily. Use of outdoor areas is preferred, but covered/enclosed areas must be available for use in inclement weather.” ACA Standard 4-4154. COUNT I – DEFENDANTS’ DEPRIVATION OF FRESH AIR AND OUTDOOR EXERCISE CONSTITUTUTES CRUEL AND UNUSUAL PUNISHMENT IN VIOLATION OF THE EIGHTH AMENDMENT OF THE U.S. CONSTITUTION
55. Plaintiffs repeat and re-allege the allegations contained in paragraphs 1 through 54 as fully restated here.
56. As detailed above, the constitutional right to fresh air and outdoor exercise is well-established and has been for many years. Access to fresh air and outdoor exercise is a basic human need. Deprivation of fresh air and outdoor exercise is a serious deprivation of a human need and amounts to inhumane treatment. Despite this, Plaintiffs and other prisoners housed in HU2 and the JDC regularly go many months without any fresh air, direct sunlight or outdoor exercise.
CLASS ACTION SECOND AMENDED COMPLAINT -19

Case 9:12-cv-00155-DWM Document 27 Filed 12/03/12 Page 20 of 27
57. Defendants have been deliberately indifferent to plaintiffs’ deprivation of this well-established constitutional right. Defendants have known that HU2 and JDC prisoners are deprived of fresh air and outdoor exercise. Defendants have known that depriving prisoners of fresh air and outdoor exercise detrimentally affects their psychological and physical well-being and is causing them harm. Defendants received multiple verbal complaints, kites, grievances and appeals requesting access to outdoor recreation and detailing the negative impact on prisoners from deprivation of fresh air and outdoor exercise. Defendants provide access to fresh air and outdoor exercise for adult male prisoners in HU1 and HU3, thereby understand the importance of providing fresh air and outdoor exercise to prisoners generally. Despite this, Defendants continue to deny prisoners in HU2 and the JDC access to fresh air and outdoor exercise.
58. Deprivation of fresh air and outdoor exercise to HU2 and JDC prisoners has no valid penological justification. COUNT II – DEFENDANTS HAVE VIOLATED PLAINTIFFS’ RIGHTS PURSUANT TO THE 14TH AMENDMENT TO THE U.S. CONSTITUTION GUARANTEEING EQUAL PROTECTION
59. Plaintiffs repeat and re-allege the allegations contained in paragraphs 1 through 58 as fully restated here.
60. By their policies and practices described above, Defendants have discriminated against Plaintiffs on the basis of their gender, thereby violating their
CLASS ACTION SECOND AMENDED COMPLAINT -20

Case 9:12-cv-00155-DWM Document 27 Filed 12/03/12 Page 21 of 27

right to equal protection of the laws. These policies and practices have and

continue to be implemented by Defendants and their agents or employees in their

official capacities, and are the proximate cause of Plaintiffs’ deprivation of rights

secured by the U.S. Constitution under the Fourteenth Amendment.

61. Female prisoners in Housing Unit 2 are similarly situated to male

prisoners at MCDF housed in HU1 and HU3. As prisoners incarcerated as both

federal and non-federal pre-trial detainees and serving county jail time, female and

juvenile prisoners and male prisoners are sufficiently similar with respect to their

conditions of incarceration. As such, female prisoners at MCDF are equivalent to

male prisoners at MCDF.

62. Despite the fact that female prisoners at MCDF are similarly situated

to male prisoners at MCDF, female prisoners are subject to unequal treatment

resulting from gender discrimination. The only housing unit available for female

prisoners in HU2, which does not have an attached outdoor recreation yard.

Defendants have refused to move female prisoners to another housing unit to

exercise, or build an outdoor recreation yard directly accessible to HU2. As a

result, while male prisoners are allowed fresh air and outdoor exercise five days a

week, female prisoners are denied any fresh air and outdoor exercise for the entire

duration of their incarceration. As such, there is a lack of parity between female

and male prisoners.

CLASS ACTION SECOND AMENDED COMPLAINT -21

Case 9:12-cv-00155-DWM Document 27 Filed 12/03/12 Page 22 of 27
63. Defendants have repeatedly represented to female prisoners that they receive fresh air and sunlight in the gym. These representations are false. The gym is not an outdoor recreation area. Sunlight shining through a window onto tiny areas of a gym floor is not the equivalent of direct sunlight. Open windows approximately 30 feet above the floor is not the equivalent of fresh air. Regardless, common practice at MCDF is to close the gym windows for most of the year. The outdoor recreation yards available to male prisoners in HU1 and HU3 have rain and snow in the winter and are commonly termed “outdoor recreation yards” by MCDF staff. Prisoners are provided with jackets in the winter to go out into the outdoor recreation yard, and often will shovel snow in the outdoor recreation area. Because they are indoor, there is no rain, snow, or direct sunlight in the indoor recreation gyms in HU2 and the JDC.
The lack of fresh air and outdoor exercise has caused and continues to cause a decrease in prisoners’ well-being. Prisoners suffer from many symptoms arising from the lack of fresh air and outdoor exercise, as described in detail above.
64. Gender-neutral alternatives to the current unequal treatment of female and male prisoners are available, rendering the current lack of parity between female and male prisoners unnecessary. For example, Defendants could utilize a canvas curtain to provide privacy to female prisoners to utilize the outdoor areas in HU1 and/or HU3. Defendants could also utilize the large fenced grassy areas with
CLASS ACTION SECOND AMENDED COMPLAINT -22

Case 9:12-cv-00155-DWM Document 27 Filed 12/03/12 Page 23 of 27
direct access to HU2 and the JDC to provide outdoor recreation for prisoners in HU2 and the JDC.
COUNT III – DEFENDANTS’ DENIAL OF FRESH AIR AND OUTDOOR EXERCISE FOR PRISONERS IN HOUSING UNIT 2 AND THE JUVENILE
DETENTION UNIT VIOLATES ARTICLE II, §4 OF THE MONTANA CONSTITUTION
65. Plaintiffs repeat and re-allege the allegations contained in paragraphs
1 through 64 as fully restated here. 66. Plaintiffs specifically re-allege the allegations set forth in Count II as
fully restated here. Based on these allegations, Plaintiffs assert that Defendants
have engaged in gender discrimination, violated plaintiffs’ human dignity, and denied them equal protection of the laws in violation of Article II, §4 of the Montana Constitution.
COUNT IV – DEFENDANTS’ DEPRIVATION OF FRESH AIR AND OUTDOOR EXERCISE CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT IN VIOLATION OF ARTICLE II, §22 OF THE MONTANA CONSTITUTION
67. Plaintiffs repeat and re-allege the allegations contained in paragraphs
1 through 66 as fully restated here. 68. Plaintiffs specifically re-allege the allegations set forth in Count I as
fully restated here. Based on these allegations, Plaintiffs assert that Defendants
have engaged cruel and unusual punishment and violated plaintiffs’ human dignity in violation of Article II, §22 of the Montana Constitution.
CLASS ACTION SECOND AMENDED COMPLAINT -23

Case 9:12-cv-00155-DWM Document 27 Filed 12/03/12 Page 24 of 27
COUNT V – DEFENDANTS’ DEPRIVATION OF FRESH AIR AND OUTDOOR EXERCISE CONSTITUTES PUNISHMENT PRIOR TO THE ADJUDICATION OF GUILT IN VIOLATION OF THE 14TH AMENDMENT TO THE U.S. CONSTITUTION
69. Plaintiffs repeat and re-allege the allegations contains in paragraphs 1 through 68 as fully restated here.
70. Depriving plaintiffs who are pre-trial detainees of fresh air and outdoor exercise constitutes punishment prior to the adjudication of guilt and is punitive.
71. Depriving plaintiffs who are pre-trial detainees of fresh air and exercise is not reasonably related to a government objective. Depriving plaintiffs who are pre-trial detainees of fresh air and outdoor exercise is an excessive punishment relative to any perceived purpose by defendants.
72. Montana Department of Corrections Policy and multiple standards regarding detention of convicted prisoners and pre-trial detainees require access to fresh air and outdoor exercise. As such, defendants’ restriction of regular access to fresh air and outdoor exercise to pre-trial detainees in HU2 and JDC is incompatible with the established state and national standards. COUNT VI – DEFENDANTS’ DEPRIVATION OF FRESH AIR AND OUTDOOR EXERCISE CONSTITUTES PUNISHMENT PRIOR TO THE ADJUDICATION OF GUILT IN VIOLATION OF ARTICLE II, §17 OF THE MONTANA CONSTITUTION
CLASS ACTION SECOND AMENDED COMPLAINT -24

Case 9:12-cv-00155-DWM Document 27 Filed 12/03/12 Page 25 of 27

73. Plaintiffs repeat and re-allege the allegations contained in paragraphs

1 through 72 as fully restated here.

74. Plaintiffs specifically re-allege the allegations set forth in Count V as

fully restated here. Based on these allegations, Plaintiffs assert that Defendants

have punished plaintiffs incarcerated as pre-trial detainees prior to an adjudication

of guilt in violation of Article II, §17 of the Montana Constitution.

WHEREFORE, Plaintiffs respectfully request that this Court:

A.

Declare the suit is maintainable as a class action pursuant to Federal

Rule of Civil Procedure 23(b)(1)(A) and 23(b)(2);

B.

Declare Defendants have engaged in cruel and unusual punishment in

violation of the Eighth Amendment to the U.S. Constitution by depriving

plaintiffs of fresh air and outdoor exercise;

C.

Declare Defendants have engaged in cruel and unusual punishment in

violation of Article II, 22 of the Montana Constitution by depriving

plaintiffs of fresh air and outdoor exercise;

D.

Declare Defendants have violated the rights guaranteed to Plaintiffs

under the Fourteenth Amendment to the U.S. Constitution by depriving

female prisoners of fresh air and outdoor exercise while providing male

prisoners access to fresh air and outdoor exercise;

CLASS ACTION SECOND AMENDED COMPLAINT -25

Case 9:12-cv-00155-DWM Document 27 Filed 12/03/12 Page 26 of 27

E.

Declare Defendants have violated the rights guaranteed to Plaintiffs

under Article II, §4 of the Montana Constitution by depriving female

prisoners of fresh air and outdoor exercise while providing male

prisoners access to fresh air and outdoor exercise;

F.

Declare Defendants have violated the rights guaranteed to Plaintiffs

under the Fourteenth Amendment to the U.S. Constitution by punishing

them as pre-trial detainees prior to an adjudication of guilt;

G.

Declare Defendants have violated the rights guaranteed to Plaintiffs

under Article II, §17 of the Montana Constitution by punishing them as

pre-trial detainees prior to an adjudication of guilt;

H.

Issue an Order: (i) directing Defendants, their successors and other

current and future employees of Missoula County to provide prisoners in

Housing Unit 2 and the Juvenile Unit with access to fresh air and

outdoor exercise for one hour five days per week;

I.

Award Plaintiffs their costs and reasonable attorneys’ fees pursuant to 42

U.S.C. §1988.

Dated this 3rd day of December, 2012.

/s/ Anna Conley ACLU of Montana Foundation

CLASS ACTION SECOND AMENDED COMPLAINT -26

Case 9:12-cv-00155-DWM Document 27 Filed 12/03/12 Page 27 of 27
[s] Greg Munro ______________________ Greg Munro, Attorney-at-Law ATTORNEYS FOR PLAINTIFFS
CLASS ACTION SECOND AMENDED COMPLAINT -27

 
 IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

MISSOULA DIVISION

LAURNA CHIEF GOES OUT, LYNDA, )

FRENCH, BRANDY BURKOWSKI,

)

and DAWN MORRIS, as next friend and )

natural mother of her minor son, D.M., )

on behalf of themselves and all others

)

similarly situated,

)

)

Plaintiffs,

)

)

vs.

)

)

MISSOULA COUNTY, CARL IBSEN, )

JASON KOWALSKI, MARK FOSS, and )

MARK HARRIS,

)

)

Defendants.

)

___________________________________ )

CV 12–155–M–DWM ORDER

The plaintiffs filed a class action complaint on September 12, 2012. They

move for class certification, which was granted on October 17, 2012. The

defendants answered and have moved to set aside the certification on November 9,

2012. The motion is denied, subject to revised definitions for the class and

subclass.

1

BACKGROUND The named plaintiffs are inmates1 incarcerated at the Missoula County Detention Facility and housed in Housing Unit 2 or in the Juvenile Detention Center. They claim that the defendants are unconstitutionally denying them fresh air and outdoor exercise. The plaintiffs ask the court to certify a class consisting of: all current and future prisoners housed in Housing Unit 2 and the Juvenile Detention Center at the Missoula County Detention Facility for a period of one month or longer who are claiming defendants have inflicted cruel and unusual punishment by denying them fresh air and outdoor exercise. They also ask the Court to certify a subclass consisting of: all female prisoners housed in Housing Unit 2 who are claiming defendants have violated their right to equal protection by denying them fresh air and outdoor exercise. Both definitions were approved in the certification order.
ANALYSIS The defendants challenge several aspects of the certification order. Those arguments fail, for the most part. For a class to be certified, the identified group must meet each of the requirements of Federal Rule of Civil Procedure 23(a) and one of the three
1 The Court uses the word “inmate” to refer to both pretrial detainees and convicted inmates when the distinction is not important.
2

subsections of Rule 23(b). The Supreme Court describes the Rule 23(a) requirements as follows:
Rule 23(a) states four threshold requirements applicable to all class actions: (1) numerosity (a ‘class [so large] that joinder of all members is impracticable’); (2) commonality (‘questions of law or fact common to the class’); (3) typicality (named parties’ claims or defenses ‘are typical . . . of the class’); and (4) adequacy of representation (representatives ‘will fairly and adequately protect the interests of the class’). Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613 (1997). Rule 23(b) then sets out the type of class actions that can be maintained. In this case the class satisfies the requirements of both Rule 23(a) and Rule 23(b). The defendants make no argument with respect to the Rule 23(b) requirements. They challenge only the numerosity, typicality, and adequacy of representation requirements in Rule 23(a). Part of their typicality argument, though, implicates the commonality requirement so it, too, is discussed below. I. Numerosity The defendants argue that the class does not meet the numerosity requirement. The response to this contention is that the class and subclass definitions should be modified, but the numerosity requirement is nonetheless satisfied in light of the fluid composition of the Detention Center facility and the inclusion of future inmates in the class. The numerosity requirement is met when “the class is so numerous that
3

joinder of all parties is impractical.” Fed. R. Civ. P. 23(a)(1). As this Court observed in Alexander v. JBC Legal Group, P.C., 237 F.R.D. 628, 630–31 (D. Mont. 2006):
The Ninth Circuit has vacated certification on numerosity grounds where a class consisted of ten members or less, and it has noted the Supreme Court’s holding in General Telephone Company v. EEOC, 446 U.S. 318, 330, 100 S.Ct. 1698, 64 L.Ed.2d 319 (1980), that a class consisting of fifteen members is too small to meet the numerosity requirement. See Harik v. Cal. Teachers Ass'n, 326 F.3d 1042, 1051 (9th Cir.2003). That being said, a small class may still satisfy the numerosity requirement where, as here, the class includes both ascertainable members and a fluid composition of future, unidentified members. See e.g. McMillon v. Hawaii, 261 F.R.D. 536, 543 (D. Hawaii 2009) (finding the numerosity requirement satisfied where the putative class consisted of 10 identifiable members, as well as future, unidentified members). The Southern District of New York explained that, in the prison context: “The fluid composition of a prison population is particularly wellsuited for class status, because, although the identity of the individuals involved may change, the nature of the wrong and the basic parameters of the group affected remain constant.” Dean v. Coughlin, 107 F.R.D. 331, 332–33 (S.D.N.Y. 1985). In the certification order, I concluded that the putative class satisfied the numerosity requirement due to the “fluid composition” of the Detention Facility
4

and “the likelihood of future, unidentified inmates who meet the class and subclass parameters.” (Certification Order, doc. 11 at 4.)
The defendants take issue with the conclusion that there is a “likelihood of future, unidentified” inmates that might meet the class and subclass definitions. The defendants insist that there is no reason to believe that there is a likelihood of any future inmates meeting the plaintiffs’ class and subclass definitions. The defendants claim the classes are very narrow because, according to the class definitions, the members must “claim[ ] defendants have inflicted cruel and unusual punishment by denying them fresh air and outdoor exercise.” In this case defendants argue that, other than the named plaintiffs, only two other female inmates and two juveniles have ever made this claim.
This aspect of defendant’s argument is well-taken. A class cannot be defined by reference to the members’ subjective state of mind. See Ries v. Ariz. Beverages USA LLC, ___ F.R.D. ___, 2012 WL 5975247, at *2 (N.D. Cal. Nov. 27, 2012) (“An identifiable class exists if its members can be ascertained by reference to objective criteria, but not if membership is contingent on a prospective member’s state of mind.”); see also Chiang v. Veneman, 385 F.3d 256, 271–72 (3rd Cir. 2004) (“defining a class by reference to those who ‘believe’ they were discriminated against undermines the validity of the class by introducing a subjective criterion into what should be an objective evaluation”), abrogated on
5

other grounds by In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 318 n.18 (3rd Cir. 2008).
The Third Circuit’s decision in Chiang is a good example. In Chiang, a group of plaintiffs sought class certification for persons who were “Black, Hispanic, women, and/or Virgin Islanders” who, over a period of nineteen years, believed they were discriminated against in the administration of low-income loan programs. 385 F.3d at 260. The court held that the “belief” element of the class definition was impermissibly subjective. Id. at 261–62. The court’s solution was simple—excise the “belief” language. Id. at 262. The revised definition, then, referred to individuals that were, in fact, discriminated—not those who “believed” they were discriminated against. Id.
A court has broad discretion to modify a class definition. See Wolph v. Acer Am. Corp., 272 F.R.D. 477, 483 (N.D. Cal. 2011). The fix here is easy—excise the “belief” language, just as the Third Circuit did in Chiang. The class definition, then, will read:
all current and future prisoners housed in Housing Unit 2 and the Juvenile Detention Center at the Missoula County Detention Center for a period of one month or longer whom the defendants deny fresh air and outdoor exercise. And the subclass will consist of: all current and future female prisoners housed in Housing Unit 2 whom the defendants deny fresh air and outdoor exercise.
6

The defendants argue that, even if the Court modifies the definition, the class size is still too small. The defendants claim that the class size is only 18 inmates. They then point to court cases where the court held that class sizes of around 15 members is too small to meet the numerosity requirement. See Gen. Tel. Co. of the N.W., Inc. v. Equal Empl. Opportunity Commn., 446 U.S. 318, 330 (1980); Rannis v. Recchia, 380 Fed. Appx. 646, 651 (9th Cir. 2010).
Ordinarily, the plaintiffs would be correct—classes of around 15 members are generally too small to meet the numerosity requirement. See Alexander, 237 F.R.D. at 630–31. But, as discussed above and in the certification order, courts have also held that small classes may satisfy the numerosity requirement where, as here, the class includes both ascertainable members and a fluid composition of future, unidentified members. See e.g. McMillon, 261 F.R.D. at 543; Dean, 107 F.R.D. at 332–33; see also Gerstein v. Pugh, 420 U.S. 103, 110 n.11 (1975) (“[I]n this case the constant existence of a class of persons suffering the deprivation is certain.”)
Here, the plaintiffs estimate there are currently at least 18 members. Naturally, this number changes daily as the Detention Facility receives and releases inmates. As a result, the plaintiffs have included future inmates in their class and subclass definitions. To offer some perspective, the plaintiffs filed an exhibit showing that: (1) between January 1, 2012, and October 22, 2012, there
7

were 27 juveniles incarcerated in the Juvenile Detention Center for 30 days or more, and (2) during that same period, there were 109 female prisoners incarcerated in Housing Unit 2 for 30 days or more. (Doc. 36.) If the past is telling of the future, there will certainly be enough future class members to satisfy the numerosity requirement.
“ A court must rely on simple common sense when determining whether a class size meets the numerosity requirement.” Olson v. Brown, 284 F.R.D. 398, 407 (N.D. Ind. 2012) (citations omitted). Common sense dictates that, in light of the Detention Facility’s “fluid composition” and the certainty of future inmates who meet the class and subclass definitions, the class satisfies the numerosity requirement. II. Typicality and Commonality
Rule 23(a)(3)—the typicality requirement—requires that the “claims or defenses of the representative parties are typical of the claims or defenses of the class.” Similarly, Rule 23(a)(2)—the commonality requirement—requires the plaintiffs to show that “there are questions of law or fact common to the class.” Both the U.S. Supreme Court and the Ninth Circuit have explained that the typicality and commonality analyses are closely related and “‘tend to merge.’” Meyer v. Portfolio Recovery Assocs., LLC, ___ F.3d ___, 2012 WL 6720599, at *2 (9th Cir. Dec. 28, 2012) (quoting Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541,
8

2551 n.5 (2011)). At least with respect to the typicality requirement, the Ninth Circuit has held
that the “claims or defenses of the representative parties” need not be identical: “Representative claims are ‘typical’ if they are reasonably co-extensive with those of absent class members; they need not be substantially identical.” Id. at *2 (citations and internal quotation marks omitted).
But, with respect to the commonality requirement, the U.S. Supreme Court has held: “[A] class representative must be part of the class and possess the same interest and suffer the same injury as the class members.” Wal-Mart, 131 S. Ct. at 2550 (citations and internal quotation marks omitted).
The defendants argue that the class fails to meet these requirements for three reasons, but each arguments fails.
A. Unverifiable injuries The defendants first argue that the claims of the named plaintiffs are not typical of the class because the specific injuries—e.g., depression, anxiety, hair loss, skin problems, or other psychological and physical effects—are not verifiable. Nor is there evidence that all of the plaintiffs are suffering precisely the same types of injuries. The defendants claim that only eight inmates have ever grieved the lack of fresh air and outdoor access, so “it is possible that only eight people have experienced the negative effects that these plaintiffs are claiming.”
9

(Defs.’ Opening Br., doc. 20 at 9.) The defendants therefore insist that “[e]xpanding the class to include everyone who is in MCDF for more than a month does not make Plaintiffs typical of that class.” The defendants’ argument misses the mark for a couple reasons.
First, the defendants mischaracterize the class. The class is not defined as “everyone who is in MCDF for more than a month.” The definition is much narrower: “all current and future prisoners housed in Housing Unit 2 and the Juvenile Detention Center at the Missoula County Detention Center for a period of one month or longer whom the defendants deny fresh air and outdoor exercise.”
Second, and most significantly, the defendants mischaracterize the injury itself. The defendants assert that the injury is the set of negative effects that inmates experience as a result of being deprived of fresh air, direct sunlight, and outdoor exercise—i.e., depression, anxiety, hair loss, skin problems, or other psychological and physical effects. The U.S. Supreme Court, the Ninth Circuit, and other courts have long recognzied that, in prison condition cases like this one, the injury is the depravation itself, not just the negative effects resulting from the depravation. Wilson v. Seiter, 501 U.S. 294, 304 (1991) (holding that prison officials may violate a prisoner’s eighth amendment right when they deprive him of “a single identifiable human need such as food, warmth, or exercise”); Thomas v. Ponder, 611 F.3d 1144 (9th Cir. 2010); Lopez v. Smith, 203 F.3d 1122, 1133
10

(9th Cir. 2000) (en banc); Spain v. Procunier, 600 F.2d 189, 199 (9th Cir. 1979); Johnson v. Woodford, 336 Fed. Appx. 594 (9th Cir. May 26, 2009); Anderson v. Colo., 2012 WL 3643063, at *4 (D. Colo. Aug. 24, 2012).
The commonality and typicality question is whether the alleged depravation is common and typical throughout the class, not whether the negative effects are common and typical.
Here, the class representatives’ claims—that the defendants are unconstitutionally denying them outdoor exercise—is typical of the claims of the class because the plaintiffs have defined the class precisely in terms of that claim. The commonality requirement is also satisfied because the class representatives are part of the class and “possess the same interest” and have allegedly “suffer[ed] the same injury as the class members”—namely, the depravation of fresh air and outdoor exercise. See Wal-Mart, 131 S. Ct. at 2550 (citations and internal quotation marks omitted).
These conclusions are consistent with the fact that other courts have certified classes of inmates claiming unconstitutional depravation of outdoor exercise, and scores of courts have certified classes of prisoners claiming other unconstitutional prison conditions. See e.g. Toussaint v. Yockey, 722 F.2d 1490 (9th Cir. 1984); Frazier v. Ward, 426 F. Supp. 1354 (N.D.N.Y. 1977); Martino v. Carey, 563 F. Supp. 984 (D. Or. 1983); Pierce v. Co. of Orange, 526 F.3d 1190,
11

1211–12 (9th Cir. 2008). B. Pretrial detainees The defendants also argue that the class representatives’ claims are not
typical of the entire class because some of the representatives are pretrial detainees, rather than convicted inmates. The defendants correctly observe that the Eighth Amendment applies to the convicted inmates’ claims, while the Fourteenth Amendment applies to the pretrial detainees’ claims. See Frost v.Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). So, the defendants argue, the pretrial detainees cannot represent convicted inmates.
The plaintiffs’ argument is a distinction without a difference. The class members’ legal theories do not have to be “substantially identical”; they need only be “reasonably co-extensive.” Meyer, ___ F.3d ___, 2012 WL 6720599, at *2. And, here, they are. Courts apply the same standards to pretrial detainees’ claims under the Fourteenth Amendment that they apply to convicted inmates’ claims under the Eighth Amendment. Frost, 152 F.3d at 1128.
A class’s claims “must be of such a nature that [they are] capable of classwide resolution—which means that determination of [their] truth or falsity will resolve an issue that is central to each one of the claims in one stroke.” WalMart, 131 S. Ct. 2551. That is the case here. As the plaintiffs succinctly assert: “If Defendants’ conduct violates pre-trial detainees’ rights under the Fourteenth
12

Amendment, it violates convicted prisoners’ Eighth Amendment rights, and vice versa.” The claims of the pretrial detainees are therefore typical of the convicted inmates’ claims, and vice versa.
C. Female class representatives in Housing Unit 2 The defendants final argument concerning typicality is that the females in Housing Unit 2 cannot represent the men in Housing Unit 2. On one hand, the defendants argue, the females are claiming that they are being treated differently than the males, as explained in their equal protection claim. But on the other hand, the females are claiming that they can represent the males in terms of their cruel and unusual punishment claims. The defendants reason that the plaintiffs are attempting to have it both ways. I disagree. The plaintiffs equal protection claim compares females in Housing Unit 2 to males in Housing Units 1 and 3. (See Second Amended Complaint, doc. 27 at ¶ 61.) Males in Housing Unit 2 do not enter the equal protection picture—the females in Housing Unit 2 are not, contrary to the defendants’ suggestion, claiming that they are being treated differently than males in Housing Unit 2. The females claim that they are being treated the same as males in Housing Unit 2—the defendants are denying both groups fresh air and outdoor exercise. The females claim only that they are being treated differently than males in Housing Units 1 and 3. So there is no conflict. Females in Housing Unit 2 can represent
13

males in Housing Unit 2 with respect to the cruel and unusual punishment claims.
And they can, at the same time, represent themselves as a subclass with respect to
their equal protection claim, which compares females in Housing Unit 2 to males
in Housing Units 1 and 3.
For these reasons, as well as the reasons in the certification order, both the
typicality and commonality requirements are satisfied.
III. Adequate Representation
Rule 23(a)(4) requires that “the representative parties will fairly and
adequately protect the interests of the class.” There are two issues to consider in
determining adequacy of representation:
(1) do the named plaintiffs and their counsel have any conflicts of interest with other class members and (2) will the named plaintiffs and their counsel prosecute the action vigorously on behalf of the class?
Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998) (citation omitted).
The defendants claim the plaintiffs fail to satisfy this requirement because
“[t]here are no longer any detained representatives in the class.” The defendants’
argument fails. An inmate may adequately represent a class that includes future
inmates, even if the inmate is released or transferred prior to class certification:
That the class was not certified until after the named plaintiffs’ claims had become moot does not deprive us of jurisdiction. We recognized in Gerstein that “[s]ome claims are so inherently transitory that the trial court will not have even enough time to rule on a motion for class certification before the proposed representative’s individual interest expires.” United States Parole Comm’n v. Geraghty, 445 U.S. 388, 399,
14

100 S. Ct. 1202, 1210, 63 L. Ed. 2d 479 (1980), citing Gerstein, supra, 420 U.S., at 110, n. 11, 95 S. Ct., at 861, n. 11. In such cases, the “relation back” doctrine is properly invoked to preserve the merits of the case for judicial resolution. See Swisher v. Brady, 438 U.S. 204, 213–214, n. 11, 98 S. Ct. 2699, 2705 n. 11, 57 L. Ed. 2d 705 (1978); Sosna, supra, 419 U.S., at 402, n. 11, 95 S. Ct., at 559, n. 11. Co. of Riverside v. McLaughlin, 500 U.S. 44, 52 (1991); see also U.S. Parole Commn. v. Geraghty, 445 U.S. 388, 404 (1980); Gerstein v. Pugh, 420 U.S. 103, 110 n.11 (1975); Wade v. Kirkland, 118 F.3d 667, 670 (9th Cir. 1997); Riggs v. Valdez, 2010 WL 4117085, at *2–*3 (D. Idaho Oct. 18, 2010). Here, the class is “inherently transitory,” such that an exception to the mootness doctrine applies and the class representatives’ standing relates back to the filing of the complaint. See e.g. Guschausky v. Am. Family Life Assur. Co. of Columbus, 2011 WL 1897183 (D. Mont. May 10, 2011). As the filings in this case have shown, the inmate population at the Detention Facility is in constant flux, changing on a daily basis. Just as in Gerstein: “It is by no means certain that any given individual, named as a plaintiff, would be in pretrial custody [or postrial custody, for that matter] long enough for a district judge to certify the class.” 420 U.S. at 110 n.11. The class representatives “will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4)
CONCLUSION The defendants’ motion to set aside is denied. The class satisfies the
15

requirements of both Rule 23(a) and Rule 23(b). However, the class is modified in its definitions, as described above.
IT IS ORDERED that the defendants’ motion to set aside class certification (doc. 17) is DENIED.
IT IS FURTHER ORDERED that the class and subclass definitions are modified as follows: Class definition
all current and future prisoners housed in Housing Unit 2 and the Juvenile Detention Center at the Missoula County Detention Center for a period of one month or longer whom the defendants deny fresh air and outdoor exercise. Subclass definition all current and future female prisoners housed in Housing Unit 2 whom the defendants deny fresh air and outdoor exercise. Dated this 10th day of January 2013.
16

 
 Case 9:12-cv-00155-DWM Document 53 Filed 11/15/13 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA MISSOULA DIVISION

LAURNA CHIEF GOES OUT, LYNDA FRENCH, BRANDY BURKOWSKI and DAWN MORRIS as next friend and mother of her minor son D.M., on behalf of themselves and all others similarly situated,
Plaintiffs,
vs.
MISSOULA COUNTY, CARL IBSEN, JASON KOWALSKI, MARK FOSS, and MARK HARRIS,
Defendants.

CV 12–155–M–DWM ORDER

In the Stipulation filed with the Court on November 14, 2013 (Doc. 52-1), the parties stipulated that Plaintiffs’ attorneys fees and costs of $34,594.87 are reasonable, and that Plaintiffs are the prevailing party.
Accordingly, IT IS ORDERED that Plaintiffs’ unopposed motion (Doc. 52) is GRANTED. Defendants shall pay Plaintiffs’ counsel $34,594.87 within sixty
1

Case 9:12-cv-00155-DWM Document 53 Filed 11/15/13 Page 2 of 2
days of the date of this Order. Dated this 15th day of November, 2013.
2

 
 Case: 9:12-cv-155 As of: 11/05/2017 10:18 PM MST 1 of 8
U.S. District Court District of Montana (Missoula) CIVIL DOCKET FOR CASE #: 9:12−cv−00155−DWM

CLOSED

Chief Goes Out et al v. Missoula County et al Assigned to: Judge Donald W. Molloy Cause: 42:1983 Civil Rights Act Plaintiff Laurna Chief Goes Out
Plaintiff Lynda French
Plaintiff Brandy Burkowski on behalf of themselves and all others similarly situated

Date Filed: 09/12/2012 Date Terminated: 07/21/2016 Jury Demand: Defendant Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question
represented by Gregory S. Munro UNIVERSITY OF MONTANA SCHOOL OF LAW 32 Campus Drive Missoula, MT 59812 406−243−6745 Fax: 406−243−6745 Email: greg.munro@umontana.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Park Taylor ACLU OF MONTANA 241 E. Alder PO Box 9138 Missoula, MT 59807 406−549−6159 Fax: 406−549−5177 Email: jpt42@hotmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anna C. Conley MISSOULA COUNTY ATTORNEY 200 W Broadway, County Courthouse Missoula, MT 59802 406−258−4737 Email: aconley@missoulacounty.us TERMINATED: 06/25/2014
represented by Gregory S. Munro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Park Taylor (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anna C. Conley (See above for address) TERMINATED: 06/25/2014
represented by Gregory S. Munro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 9:12-cv-155 As of: 11/05/2017 10:18 PM MST 2 of 8

Plaintiff
Dawn Morris As Next of friend and Natural Mother of her Minor son D.M.

James Park Taylor (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anna C. Conley (See above for address) TERMINATED: 06/25/2014
represented by James Park Taylor (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anna C. Conley (See above for address) TERMINATED: 06/25/2014

V. Defendant Missoula County

represented by Kevin A. Twidwell KALEVA LAW OFFICE 1911 S. Higgins Ave. P.O. Box 9312 Missoula, MT 59807−9312 406−542−1300 Fax: 406−721−1046 Email: ktwidwell@kalevalaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles E. McNeil GARLINGTON, LOHN & ROBINSON, PLLP PO Box 7909 199 W Pine Missoula, MT 59807−7909 406−523−2500 Fax: 523−2595 Email: cemcneil@garlington.com ATTORNEY TO BE NOTICED
Elena J. Zlatnik Garlington, Lohn & Robinson P.O. Box 7909 Missoula, MT 59807 406 523−2500 Fax: 406 523−2595 Email: ejzlatnik@garlington.com
John W. Hart MISSOULA COUNTY ATTORNEY 200 W Broadway, County Courthouse Missoula, MT 59802 406−258−4737 Fax: 258−3979 Email: jhart@missoulacounty.us ATTORNEY TO BE NOTICED
Martha E. McClain

Case: 9:12-cv-155 As of: 11/05/2017 10:18 PM MST 3 of 8

MISSOULA COUNTY ATTORNEY 200 W Broadway, County Courthouse Missoula, MT 59802 406−258−4953 Fax: 406−258−3979 Email: mmcclain@co.missoula.mt.us TERMINATED: 04/11/2016

Defendant Carl Ibsen

represented by Kevin A. Twidwell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles E. McNeil (See above for address) ATTORNEY TO BE NOTICED

Elena J. Zlatnik (See above for address)

John W. Hart (See above for address) ATTORNEY TO BE NOTICED

Martha E. McClain (See above for address) TERMINATED: 04/11/2016

Defendant Jason Kowalski

represented by Kevin A. Twidwell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles E. McNeil (See above for address) ATTORNEY TO BE NOTICED

Elena J. Zlatnik (See above for address)

John W. Hart (See above for address) ATTORNEY TO BE NOTICED

Martha E. McClain (See above for address) TERMINATED: 04/11/2016

Defendant Mark Foss

represented by Kevin A. Twidwell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles E. McNeil (See above for address) ATTORNEY TO BE NOTICED

Elena J. Zlatnik (See above for address)

Case: 9:12-cv-155 As of: 11/05/2017 10:18 PM MST 4 of 8

Martha E. McClain (See above for address) TERMINATED: 04/11/2016

Defendant Mark Harris

represented by Kevin A. Twidwell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles E. McNeil (See above for address) ATTORNEY TO BE NOTICED

Elena J. Zlatnik (See above for address)

John W. Hart (See above for address) ATTORNEY TO BE NOTICED

Martha E. McClain (See above for address) TERMINATED: 04/11/2016

Date Filed 09/12/2012 09/12/2012 09/12/2012 09/12/2012 09/12/2012 09/28/2012 09/28/2012 09/28/2012 09/28/2012 09/28/2012

# Docket Text
1 COMPLAINT against All Defendants, filed by Brandy Burkowski, Laurna Chief Goes Out, Lynda French. (Attachments: # 1 Civil Cover Sheet) (BAW, ) (Entered: 09/12/2012)
Filing fee paid in the amount of $ 350.00, receipt number 0977−1124656 (BAW, ) (Entered: 09/12/2012)
2 Summons Issued as to Mark Foss, Mark Harris, Carl Ibsen, Jason Kowalski, Missoula County and mailed to counsel Conley for service. (BAW, ) (Entered: 09/12/2012)
3 MOTION to Certify Class and Subclass Anna C. Conley appearing for Plaintiffs Brandy Burkowski, Laurna Chief Goes Out, Lynda French (Conley, Anna) (Entered: 09/12/2012)
4 Brief/Memorandum in Support re 3 MOTION to Certify Class and Subclass filed by Brandy Burkowski, Laurna Chief Goes Out, Lynda French. (Conley, Anna) (Entered: 09/12/2012)
5 WAIVER OF SERVICE Returned Executed by Brandy Burkowski, Laurna Chief Goes Out, Lynda French. Missoula County waiver sent on 9/12/2012, answer due 11/13/2012. (Conley, Anna) (Entered: 09/28/2012)
6 WAIVER OF SERVICE Returned Executed by Brandy Burkowski, Laurna Chief Goes Out, Lynda French. Carl Ibsen waiver sent on 9/12/2012, answer due 11/13/2012. (Conley, Anna) (Entered: 09/28/2012)
7 WAIVER OF SERVICE Returned Executed by Brandy Burkowski, Laurna Chief Goes Out, Lynda French. Jason Kowalski waiver sent on 9/12/2012, answer due 11/13/2012. (Conley, Anna) (Entered: 09/28/2012)
8 WAIVER OF SERVICE Returned Executed by Brandy Burkowski, Laurna Chief Goes Out, Lynda French. Mark Foss waiver sent on 9/12/2012, answer due 11/13/2012. (Conley, Anna) (Entered: 09/28/2012)
9 WAIVER OF SERVICE Returned Executed by Brandy Burkowski, Laurna Chief Goes Out, Lynda French. Mark Harris waiver sent on 9/12/2012, answer due 11/13/2012. (Conley, Anna) (Entered: 09/28/2012)

Case: 9:12-cv-155 As of: 11/05/2017 10:18 PM MST 5 of 8

09/28/2012 10/17/2012 10/18/2012 10/18/2012 10/18/2012 11/09/2012 11/09/2012 11/09/2012 11/09/2012 11/09/2012
11/09/2012 11/15/2012 11/16/2012
11/20/2012
11/29/2012

10 AMENDED COMPLAINT against All Defendants, filed by Brandy Burkowski, Laurna Chief Goes Out, Lynda French, Dawn Morris. (Conley, Anna) (Entered: 09/28/2012)
11 ORDER granting 3 Motion to Certify Class. It is further ordered that Anna Conley and Greg Munro are appointed as class counsel. Signed by Judge Donald W. Molloy on 10/17/2012. (ASG, ) (Entered: 10/17/2012)
12 MOTION to Set Aside 11 Order on Motion to Certify Class and Allow Defendants to File Brief Kevin A. Twidwell appearing for Defendants Mark Foss, Mark Harris, Carl Ibsen, Jason Kowalski, Missoula County (Attachments: # 1 Exhibit A − Signed Waivers, # 2 Exhibit B − Correspondence) (Twidwell, Kevin) (Entered: 10/18/2012)
13 NOTICE of Appearance by Charles E. McNeil on behalf of Mark Foss, Mark Harris, Carl Ibsen, Jason Kowalski, Missoula County (McNeil, Charles) (Entered: 10/18/2012)
14 ORDER denying 12 Motion to Set Aside, subject to renewal. Signed by Judge Donald W. Molloy on 10/18/2012. (ASG, ) (Entered: 10/18/2012)
15 NOTICE of Appearance by Elena J. Zlatnik on behalf of Mark Foss, Mark Harris, Carl Ibsen, Jason Kowalski, Missoula County (Zlatnik, Elena) (Entered: 11/09/2012)
16 ANSWER to 10 Amended Complaint by Mark Foss, Mark Harris, Carl Ibsen, Jason Kowalski, Missoula County. (Twidwell, Kevin) (Entered: 11/09/2012)
17 MOTION to Set Aside 14 Order on Motion to Set Aside, 11 Order on Motion to Certify Class Kevin A. Twidwell appearing for Defendants Mark Foss, Mark Harris, Carl Ibsen, Jason Kowalski, Missoula County (Twidwell, Kevin) (Entered: 11/09/2012)
18 (INCORRECT PDF ATTACHED per call from counsel−see document 20) Brief/Memorandum in Support re 17 MOTION to Set Aside 14 Order on Motion to Set Aside, 11 Order on Motion to Certify Class filed by Mark Foss, Mark Harris, Carl Ibsen, Jason Kowalski, Missoula County. (Twidwell, Kevin) . (Entered: 11/09/2012)
19 AFFIDAVIT/DECLARATION re 17 MOTION to Set Aside 14 Order on Motion to Set Aside, 11 Order on Motion to Certify Class by Mark Foss, Mark Harris, Carl Ibsen, Jason Kowalski, Missoula County. (Attachments: # 1 Exhibit A − Burkowski release receipt report, # 2 Exhibit B − French release receipt report, # 3 Exhibit C − Chiefgoesout release receipt report) (Twidwell, Kevin) (Entered: 11/09/2012)
20 Brief/Memorandum in Support re 17 MOTION to Set Aside 14 Order on Motion to Set Aside, 11 Order on Motion to Certify Class filed by Mark Foss, Mark Harris, Carl Ibsen, Jason Kowalski, Missoula County. (Twidwell, Kevin) (Entered: 11/09/2012)
21 Unopposed MOTION for Extension of Time to File Response/Reply to Motion to Set Aside Class Certification Anna C. Conley appearing for Plaintiffs Brandy Burkowski, Laurna Chief Goes Out, Lynda French, Dawn Morris (Attachments: # 1 Exhibit Text of Proposed Order) (Conley, Anna) (Entered: 11/15/2012)
22 ORDER granting 21 Motion for Extension of Time to File Response/Reply re 17 MOTION to Set Aside 14 Order on Motion to Set Aside, 11 Order on Motion to Certify Class. Responses due by 11/30/2012. Replies due by 12/14/2012. Motions ripe 11/30/2012. Signed by Judge Donald W. Molloy on 11/16/2012. (dle) (Entered: 11/16/2012)
23 PRELIMINARY PRETRIAL CONFERENCE ORDER:Preliminary Pretrial Statement due by 1/8/2013. Joint Discovery Plan due by 1/8/2013. Pretrial Conference set for 1/15/2013 at 11:00 AM in the Russell Smith Courthouse, Missoula, MT before Judge Donald W. Molloy. Signed by Judge Donald W. Molloy on 11/20/2012. (dle) (Entered: 11/20/2012)
24 Unopposed MOTION for Leave to File Second Amended Complaint Anna C. Conley appearing for Plaintiffs Brandy Burkowski, Laurna Chief Goes Out, Lynda French, Dawn Morris (Attachments: # 1 Exhibit Proposed Second Amended Complaint, # 2 Exhibit Proposed Order) (Conley, Anna) (Entered: 11/29/2012)

Case: 9:12-cv-155 As of: 11/05/2017 10:18 PM MST 6 of 8

11/30/2012
11/30/2012 12/03/2012 12/12/2012 12/20/2012 01/08/2013 01/08/2013 01/08/2013 01/09/2013
01/09/2013 01/09/2013 01/10/2013 01/10/2013 01/15/2013 01/15/2013
02/26/2013
02/27/2013
04/12/2013

25 RESPONSE to Motion re 17 MOTION to Set Aside 14 Order on Motion to Set Aside, 11 Order on Motion to Certify Class filed by Brandy Burkowski, Laurna Chief Goes Out, Lynda French, Dawn Morris. (Attachments: # 1 Exhibit Affidavits of Former MCDF HU2 Prisoners, # 2 Exhibit Affidavit of Minor DM) (Conley, Anna) (Entered: 11/30/2012)
26 ORDER granting 24 Motion for Leave to File second amended complaint. Signed by Judge Donald W. Molloy on 11/30/2012. (dle) (Entered: 11/30/2012)
27 AMENDED COMPLAINT against All Defendants, filed by Brandy Burkowski, Laurna Chief Goes Out, Lynda French, Dawn Morris. (Conley, Anna) (Entered: 12/03/2012)
28 REPLY to Response to Motion re 17 MOTION to Set Aside 14 Order on Motion to Set Aside, 11 Order on Motion to Certify Class filed by Mark Foss, Mark Harris, Carl Ibsen, Jason Kowalski, Missoula County. (Zlatnik, Elena) (Entered: 12/12/2012)
29 Defendants' ANSWER to 27 Amended Complaint by Mark Foss, Mark Harris, Carl Ibsen, Jason Kowalski, Missoula County. (Twidwell, Kevin) (Entered: 12/20/2012)
30 PRELIMINARY PRETRIAL STATEMENT by Mark Foss, Mark Harris, Carl Ibsen, Jason Kowalski, Missoula County. (Twidwell, Kevin) (Entered: 01/08/2013)
31 PRELIMINARY PRETRIAL STATEMENT by Brandy Burkowski, Laurna Chief Goes Out, Lynda French, Dawn Morris. (Conley, Anna) (Entered: 01/08/2013)
32 JOINT DISCOVERY PLAN by Brandy Burkowski, Laurna Chief Goes Out, Lynda French, Dawn Morris. (Conley, Anna) (Entered: 01/08/2013)
33 Unopposed MOTION for Leave to File Additional Evidence Anna C. Conley appearing for Plaintiffs Brandy Burkowski, Laurna Chief Goes Out, Lynda French, Dawn Morris (Attachments: # 1 Exhibit Proposed Order) (Conley, Anna) (Entered: 01/09/2013)
34 Brief/Memorandum in Support re 33 Unopposed MOTION for Leave to File Additional Evidence filed by Brandy Burkowski, Laurna Chief Goes Out, Lynda French, Dawn Morris. (Conley, Anna) (Entered: 01/09/2013)
35 ORDER granting 33 Motion for Leave to File additional evidence. Signed by Judge Donald W. Molloy on 1/9/2013. (dle) (Entered: 01/09/2013)
36 NOTICE by Brandy Burkowski, Laurna Chief Goes Out, Lynda French, Dawn Morris (Attachments: # 1 Exhibit Exhibit A) (Conley, Anna) (Entered: 01/10/2013)
37 ORDER denying 17 Motion to Set Aside Class Certification. Signed by Judge Donald W. Molloy on 1/10/2013. (dle) (Entered: 01/10/2013)
Minute Entry for proceedings held before Judge Donald W. Molloy: Initial Pretrial Conference held on 1/15/2013. (dle) (Entered: 01/15/2013)
38 SCHEDULING ORDER: Final Pretrial Conference set for 10/3/2013 at 1:30 PM in the Russell Smith Courthouse, Missoula, MT before Judge Donald W. Molloy. Jury Trial set for 10/15/2013 at 8:30 AM in the Russell Smith Courthouse, Missoula, MT before Judge Donald W. Molloy. Amended Pleadings due by 1/29/2013. Discovery due by 7/3/2013. Motions due by 8/3/2013. Proposed Pretrial Order due by 9/25/2013. Signed by Judge Donald W. Molloy on 1/15/2013. (dle) (Entered: 01/15/2013)
39 Joint MOTION to Stay Proceeings and to Vacate Scheduling Order Charles E. McNeil appearing for Defendants Mark Foss, Mark Harris, Carl Ibsen, Jason Kowalski, Missoula County (Attachments: # 1 Exhibit A − proposed Order) (McNeil, Charles) (Entered: 02/26/2013)
40 ORDER STAYING CASE. Motions terminated: 39 Joint MOTION to Stay Proceeings and to Vacate Scheduling Order filed by Mark Foss, Carl Ibsen, Missoula County, Mark Harris, Jason Kowalski. Status Report due by 4/15/2013. Signed by Judge Donald W. Molloy on 2/27/2013. (dle) (Entered: 02/27/2013)
41 STATUS REPORT Joint by Mark Foss, Mark Harris, Carl Ibsen, Jason Kowalski, Missoula County. (McNeil, Charles) (Entered: 04/12/2013)

Case: 9:12-cv-155 As of: 11/05/2017 10:18 PM MST 7 of 8

05/28/2013 07/10/2013 07/10/2013
07/10/2013 07/12/2013
07/24/2013 07/25/2013 10/04/2013 10/31/2013
10/31/2013 10/31/2013 11/14/2013 11/15/2013 01/15/2014 05/05/2014

42 STATUS REPORT Joint Supplemental by Mark Foss, Mark Harris, Carl Ibsen, Jason Kowalski, Missoula County. (McNeil, Charles) (Entered: 05/28/2013)
43 Joint MOTION to Approve Settlement Agreement Preliminarily, Notice to Class and Schedule Fairness Hearing Anna C. Conley appearing for Plaintiffs Brandy Burkowski, Laurna Chief Goes Out, Lynda French, Dawn Morris (Conley, Anna) (Entered: 07/10/2013)
44 BRIEF IN SUPPORT of Joint MOTION to Approve Settlement Agreement Anna C. Conley appearing for Plaintiffs Brandy Burkowski, Laurna Chief Goes Out, Lynda French, Dawn Morris (Attachments: # 1 Exhibit Proposed Settlement Agreement, # 2 Exhibit Proposed Notice to Class, # 3 Text of Proposed Order Proposed Order) (Conley, Anna) Modified on 7/10/2013 (BAW, ). (Entered: 07/10/2013)
45 Notice of Correction: re 44 Joint MOTION to Approve Settlement Agreement Brief in Support. The filing error relates to: Incorrect Docket Event used. See the attached document for a brief description of the error made. (BAW, ) (Entered: 07/10/2013)
46 ORDER granting 43 Joint MOTION; Setting Hearing on Motion 43 Joint MOTION to Approve Settlement Agreement to determine whether the proposed settlement agreement is fair, reasonable, and adequate and should be approved by the court set for 10/31/2013 at 09:00 AM in Missoula, MT before Judge Donald W. Molloy.) Signed by Judge Donald W. Molloy on 7/12/2013. (BAW, ) (Entered: 07/12/2013)
47 Unopposed MOTION to Clarify Order (Dkt.46) Charles E. McNeil appearing for Defendants Mark Foss, Mark Harris, Carl Ibsen, Jason Kowalski, Missoula County (Attachments: # 1 Text of Proposed Order Order for clarification, # 2 Exhibit Revised Ex B) (McNeil, Charles) (Entered: 07/24/2013)
48 ORDER granting 47 Motion to Clarify. Signed by Judge Donald W. Molloy on 7/25/2013. (Attachments: # 1 Exhibit B) (dle) (Entered: 07/25/2013)
49 AFFIDAVIT/DECLARATION re 46 Order, Terminate Motions, Order Setting Hearing on Motion,,, of Jason Kowalski by Mark Foss, Mark Harris, Carl Ibsen, Jason Kowalski, Missoula County. (McNeil, Charles) (Entered: 10/04/2013)
50 Minute Entry for proceedings held before Judge Donald W. Molloy: Motion Hearing held on 10/31/2013 re 43 Joint MOTION to Approve Settlement Agreement Preliminarily, Notice to Class and Schedule Fairness Hearing filed by Lynda French, Laurna Chief Goes Out, Dawn Morris, Brandy Burkowski. Counsel Greg Munro and Anna Conley appearing on behalf of the Plaintiffs, Counsel Chuck McNeil appearing on behalf of the Defendants. Settlement agreement discussed. Initial requirements in Court's Order have been met. Court approves settlement under terms proposed; Order adopting signed in open Court. Hearing commenced at 9:06 a.m. and concluded at 9:15 a.m. (Court Reporter JoAnn Bacheller.) (NOS, ) (Entered: 10/31/2013)
51 CONSENT DECREE, ORDER AND JUDGMENT APPROVING AND ADOPTING PROPOSED SETTLEMENT AGREEMENT. Signed by Judge Donald W. Molloy on 10/31/2013. (Attachments: # 1 Exhibit A − Settlement Agreement) (NOS, ) (Entered: 10/31/2013)
Administrative Correction: Case inadvertently closed. Case reopended this date. (CDH, ) (Entered: 10/31/2013)
52 Unopposed MOTION for Attorney Fees Anna C. Conley appearing for Plaintiffs Brandy Burkowski, Laurna Chief Goes Out, Lynda French, Dawn Morris (Attachments: # 1 Exhibit Stipulation Regarding Attorneys Fees, # 2 Exhibit Proposed Order Regarding Attorneys Fees) (Conley, Anna) (Entered: 11/14/2013)
53 ORDER granting 52 Motion for Attorney Fees. Signed by Judge Donald W. Molloy on 11/15/2013. (dle) (Entered: 11/15/2013)
54 STATUS REPORT (Joint) by Mark Foss, Mark Harris, Carl Ibsen, Jason Kowalski, Missoula County. (Attachments: # 1 Outback Construction Memo) (McNeil, Charles) (Entered: 01/15/2014)
55 STATUS REPORT Supplemental Joint by Mark Foss, Mark Harris, Carl Ibsen, Jason Kowalski, Missoula County. (Attachments: # 1 Letter of Transmittal) (McNeil, Charles) (Entered: 05/05/2014)

Case: 9:12-cv-155 As of: 11/05/2017 10:18 PM MST 8 of 8

05/12/2014
06/25/2014 06/30/2015 03/04/2016 04/11/2016 04/14/2016 04/15/2016 07/21/2016
07/21/2016 07/21/2016

56 ORDER re 55 Status Report filed by Mark Foss, Carl Ibsen, Missoula County, Mark Harris, Jason Kowalski. Parties will file a status report on or before 6/30/2015. Signed by Judge Donald W. Molloy on 5/12/2014. (NOS, ) (Entered: 05/12/2014)
57 NOTICE of Substitution of Counsel by Brandy Burkowski, Laurna Chief Goes Out, Lynda French, Dawn Morris (Conley, Anna) (Entered: 06/25/2014)
58 STATUS REPORT by Laurna Chief Goes Out. (Taylor, James) (Entered: 06/30/2015)
59 STATUS REPORT (Joint) by Mark Foss, Mark Harris, Carl Ibsen, Jason Kowalski, Missoula County. (McNeil, Charles) (Entered: 03/04/2016)
60 NOTICE of Substitution of Counsel by Missoula County (Hart, John) (Entered: 04/11/2016)
61 NOTICE of Change of Address by John W. Hart (Hart, John) (Entered: 04/14/2016)
62 NOTICE of Change of Address by John W. Hart (Hart, John) (Entered: 04/15/2016)
63 MOTION termination of prospective relief re 51 Consent Judgment Charles E. McNeil appearing for Defendant Missoula County (Attachments: # 1 Text of Proposed Order termination of prospective relief) (McNeil, Charles) (Entered: 07/21/2016)
64 Brief/Memorandum in Support re 63 MOTION termination of prospective relief re 51 Consent Judgment filed by Missoula County. (McNeil, Charles) (Entered: 07/21/2016)
65 ORDER granting 63 Motion to terminate prospective relief. The prospective relief within the Consent Decree is terminated. Signed by Judge Donald W. Molloy on 7/21/2016. (DLE) (Entered: 07/21/2016)