case 4:09-cv-00006-PRC document 1 filed 01/02/09 page 1 of 11 •

STATE OF INDIANA

) IN THE TIPPECANOE COUNTY COuR.'fSYSTEM

COUNTY OF TIPPECANOE

)ss: ) CAUSENO.

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JEFFREY MARK OLSON, on his own )

behalfand on behalfof a class of those )

similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

TRACY BROWN, in his official capacity )

as SheriffofTippecanoe County,

)

)

Defendant.

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CAME TO HAND AT_ .O'clock_.M.
JAN 0 12009
Tracy~'· Urown Sberltl ol Tlntcan•• C:ouaty
LAFAYETTE. IN

VERIFIED CLASS ACTION COMPLAINT FOR DECLAR,ATORY AND INJUNCTIVE RELIEF

Introductory Statement

1. This is a class action lawsuit for declaratory and injunctive relief brought by Jeffi:ey

Olson, who is presently confined in the Tippecanoe County Jail, against Sheriff Tracy

Brown, who is the duly elected Sheriff of Tippecanoe County and who is therefore

responsible for the operations of the jail. Mr. Olson seeks to enjoin the practices !lildlor

policies of the defendant (a) whereby inmates' incoming mail from courts is opened

outside the presence of the inmate to whom it is addressed; (b) whereby inmates'

incoming mail that is clearly identifiable as legal mail is opened outside the presence of

the inmate n:_ whom it is addressed; (c) whereby inmates are not permitted reasonable

access to the law library; and (d) whareby grievances :filed by inmates do not receive a

response within a reasonable period of time. These practices and/or policies violate

Indiana Jaw and the First and Fourteenth Amendments to the United States Constitution.

2. This action is brought pursuant to Indiana law and 42 U.S.C. § 1983.

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case 4:09-cv-00006-PRC document 1 filed 01/02/09 page 2 of 11

. ' -· ~- .
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Parties
3. Jeffrey Mark Olson is an adult male who is presently confined in Tippecanoe County Jail.
4. Tracy Brown is the duly elected Sheriff of Tippecanoe County, and is sued in his official
capacity.
Class Action Allegations
5. This action is brought by the plaintiff on his own behalf and on behalfof a 'Class ofthose similarly situated pursuant to Rule 23(A) and (B)(2) of the Indiana Rules of Trial
Procedure.
6. The putative class is defined as follows:
Any and all persons currently confined, or who will in the future be confined, in the Tippecanoe Co1mty Jail.
7. All requirements ofRule 23(A) are met in this causein that: a. The class is so numerous that joinder of all members is impractical. The capacity of the Tippecanoe County Jail is five hundred forty-six {546), and it :frequently operatas at or near capacity.
b. There are questions oflaw or fact common to the class: whether conditions in the Tippecanoe Co~mly Jail and the treatment of persons confined to the Tippecanoe County Jail violate the United States Constitution and Indiana law.
c. The claims ofthe representative party are typical of those ofthe class. d. The representative party will fairly and adequately protect the interests of the
class.
8. The further requirements of Rule 23(8)(2) of the Indiana Rules of Trial Procedure are
met in this cause in that the defendants, at all times, have acted or refused to act in a
manner generally applicable to the class, thereby making final injunctive and declaratory
reliefappropriate with respect to the class as a whole.
Factual Allegations

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case 4:09-cv-00006-PRC document 1 filed 01/02/09 page 3 of 11

•

9. Jeffrey Mark Olson is an adult male who is presently incarcerated in the Tippecanoe

County Jail and has been since August 29, 2008.

I 0. The Tippecanoe County Jail is a holding facility for the Indiana Department of

Correction, and therefore houses numerous persons who have been sentenced to the
. I
Department of Correction.

I J. On or about November I, 2003, Mr. Olson was sentenced to serve ten (10) years In the

Indiana Department of Correction. Prior to serving this time, he was Incarcerated in the

Federal Bureau of Prisons. However, he has recently begun serving his state sentence,

and is being held at the Tippecanoe County Jail pending his transfer to a different facility.

12. During his stay at Tippecanoe County Jail, Mr. Olson has ex:perienced numerous

problems thst he felt should be resolved. Among these problems were the following:

• He has a. pending civil lawsuit in the United States District Court for the Eastern District of Kentucky, but upon his arrival at Tippecanoe County Jail, Mr. Olson's legal work was taken and placed in storage.

• Mr. Olson has not been permitted access to the law library even though he is

representing himself In a pending legal action and has experienced other legal

problems.

• Mr. Olson has received numerous orders and motions from the federal oourt In

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which his civil action is pending, but each ofthese documents was opened outside

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of Mr. Olson's presence and then given to him without the envelope.

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• Mr. Olson's legal mail, particularly legal mail from the ACLU of Indiana, was

opened by jail staffoutside ofhis presence, and he was provided with letters from

attorneys but not with the envelope In which they came, and with the addreas and

telephone number ofthe sender redacted from the letter itself.

• Officers of Tippecanoe County Jail have provided Mr. Olson with the incorrect prescription medications.

• The eating utensils and cups that are provided to Mr. Olson and other inmates are not clean, and the inmates are not provided with any instruments to wash or sanitize their own utensils.

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case 4:09-cv-00006-PRC document 1 filed 01/02/09 page 4 of 11

• The Tippecanoe County Jail's library is out-of-date, and does not carry recent publications.

• The Tippecanoe County Jail charges ten dollars ($1 0,00) for each medical visit and an additional seven dollars ($7.00) for each medication, including each refill of previously prescribed medications.

• Mr. Olson believes that the commissary prices at the Tippecanoe County Jail, including the prices for pre-paid phone C!lrds, are excessive.

• The Tippecanoe County Jail has not and does not respond to any of the grievances that have been filed by Mr. Olson, and does not provide inmates with copies of grievances when they are filed. ·

Mr. Olson therefore filed grievances over each of these issues, and kept a journal

recounting his filed grievances. In this journal, Mr. Olson recorded the precise language

of each grievance Ire filed and each appeal of this grievance contemporaneously with the

filing ofthe grievances.

13. Pursuant to the grievance policy of Tippecanoe County Jail, an inmate who wishes to file

a grievance over an issue may do so. After a grievance is filed, the jail is responsible for

responding to the grievance within seveo (7) days. 1fthe inmate does not agree with this

i~~ys decision, he or she may appeal the decision. The jaillheo has

to respond

to the appeal. 1f the decision is still adverse to the inmate, at this point the grievance

procedure has been exhansted.

14. On September 8, 2008, Mr. Olson received through the mail an eovelope from the United

States District Court for the Eastern District ofTeonessee. On the outside, the eovelope

was clearly marked as originating from "Clerk, United States District Court." Prior to

being teodered by jail staff to Mr. Olson, this eovelope had been opened outside of his

presence, and all staples from the documents had been removed. The member of the jail

staff who presented the envelope to Mr. Olson explained that Ire did not understand the

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case 4:09-cv-00006-PRC document 1 filed 01/02/09 page 5 of 11

first two (2) pages, which were print-outs from the federal court's electronic filing system. The envelope contained legal documents that had been filed in a lawsuit for which the plaintiff is representing himself. 15. On September 8, 2008, Mr. Olson submitted a grievance to the jail staff over the issue of the opening of legal mail. The jail did not respond to this grievance, and on September 18, 2008, Mr. Olson therefOre submitted a grievance concerning the jail's failure to ~· respond to his grievance and an appeal of the grievance thet had received no response. To this date, the jail has not responded to either grievance, and Mr. Olson has therefore timely and properly exhausted the jail's grievance procedure. A true and correct copy of Mr. Olson's grievance and grievance appeal, which was completed by hand contemporaneously with the tender of these documents to jail staff; is attached and incorporated herein as Exhibit 1. 16. On October 17, 2008, Mr. Olson received through the Ill11i1 an envelope from the Parke County Circuit Court. On the outside, the envelope was clearly marked as originating from "Clerk, Parke County Court, Kim Shorter." Prior to being tendered by jail staff to Mr. Olson, this envelope had been opened outside of his presence. The envelope oontaiD.ed legal documenfs that had been filed in a second lawsuit fur which the plaintiff is representing himself. 17. On October 17, 2008, Mr. Olson submitted a grievance to the jail staff over the issue of the opening of legal mail. The jail did not respond to this grievance, and on October 26, 2008, Mr. Olson therefore submitted a grievance concerning the jail's failure to respond to his grievance and an appeal of the grievance that had received no response. To this date, the jail has not responded to either grievance, and Mr. Olson bas therefOre timely
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case 4:09-cv-00006-PRC document 1 filed 01/02/09 page 6 of 11
and properly exhausted the jail's grievance procedure. A true and correct copy of Mr. Olson's grievance and grievance. appeal, which was completed by hand contemporaneously with the tender of these documents to jail staff, is attached and incorporated herein as Exh!bit 2. 18. Both on October 28, 2008, and on November 8, 2008, Mr. Olson received through the mail legal documents from courts. On the outside, both envelopes were clearly marked as originating from courts. However, prior to being tendered by jail staff to Mr. Olson, both envelopes had been opened outside ofhis presence. The envelope contained legal documents that had been filed in lawsuits for which the plaintiff is representing himself. 19. Mr. Olson has also received correspondence from various attorneys since his incarceration at Tippecanoe County Jail, and will continue to receive legal mail from various attorneys. In the past, he has received mail that bad been previously opened by . jail staff from the United States Dialrict Court for the Eastern Dislrict of Kentucky, the Parke County Circuit Court, the Office of the Federal Defender, and the ACLU of Indiana. Bach piece ofmail was clearly marked either with the retum address of a courtof-law or with the phrase "legal mail." However, each piece oflllllll was opened outside ofMr. Olson's presence. 20. On September 18, 2008, Mr. Olson requested that he be permitted to visit the law library in order to conduct legal research concerning pending legal proceedings for which Mr. Olson is representing himself. Mr. Olson's request was denied, and he was informed by jail staff that access to the Jaw library had been denied as punishment to all inmates of Tippecanoe County Jail who resided on C-Pod. Mr. Olson did not know what the C-Pod inmates were being punished fur. Mr. Olson subsequently requested that he be permitted
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case 4:09-cv-00006-PRC document 1 filed 01/02/09 page 7 of 11
to visit the law libmy on numerous occasions. However, to this date, he has not been permitted to visit the law libmy. 21. On September 18, 2008, :Mr: Olson submitted a grievance to the jail staff over this issue. The jail did not respond to this grievance, and on September 29, 2008, :Mr. Olson therefore submitted a grievance concerning the jail's failure to respond to his grievance
and an appeal of the grievance that had received no response. To this date, the jail has
not responded to either grievance, and :Mr. Olson has therefore timely and properly exhausted the jail's grievance procedure. A true and correct copy of :Mr. Olson's
grievance and grievance appee.l, which was completed by hand contemporaneously with
the tender of these documents to jail staff, is attached and incorporated herein as Exhibit 3. 22. Since his arrive.! at Tippecanoe County Jail on August 29, 2008, :Mr. Olson has submitted
at least twenty-one (21) grievances and at least twenty-one (21) grievance appeals to the jail staff. Many of these grievances were submitted in August or September of2008. Of these grievances, not one has received a response.
23. On October 25, 2008, :Mr. Olson submitted a grievance to the jail staff over their failure
to respond to grievances. The jail did not respond to this grievance, and on November 7,
2008, :Mr. Olson therefore submitted an appeal of the grievance that had received no response. To this date, the jail has not responded to Mr. Olson's grievance, and Mr. Olson has therefore timely and properly exhausted the jail's grievance procedure. A true and correct copy of :Mr. Olson's grievance and grievance appee.l, which was completed by hand contemporaneously with the tender of these documents to jail staff, is attached and inco!Jlorated herein as Exhibit 4.
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case 4:09-cv-00006-PRC document 1 filed 01/02/09 page 8 of 11

24. Mr. Olson is presently proceeding pro se in a civil lawsuit in the United States District

Court for the Eastern District of Kentucky and in a separate lawsuit in Parke County,

Indiana, and requires reasonable access to the law library in order to represent himself in

these matters.

25. The Tippecanoe County Jail has a practice or policy of opening and reading mail from

various courts, including orders and motions that have been filed in cases in which the

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inmate is a party, outside of the presence of the inmate.

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.:

26. The Tippecanoe County Jail has a practice or policy of opening clearly identifiable legal

mail, including legal mail from the ACLU of Indiana, outside of the presence of the

inmate to whom the mail is addressed

27. The Tippecanoe County Jail has a practice or policy of refusing to permit inmates

reasonable access to the law library.

28. The Tippecanoe County Jail has a practice or policy of failing to respond to grievances

filed by inmates.

29. As a result of these practices or policies of the Tippecanoe County Jail, the plaintiff and

the members of the putative class are suffering irreparable harm fur which there is no

adequate remedy at law.

30. The defendant has, at all timea, acted or refused to act under color ofstate law.

Legal Claims

31. Tippecanoe County Jail's practice or policy of opening mail from courts outside the

presence of the inmate to whom it is addressed violates the First and Fourteenth

Amendments to the United States Constitution and Indiana law, IND. ADMIN. CODE tit.

210, r. 3-l-16(c).

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case 4:09-cv-00006-PRC document 1 filed 01/02/09 page 9 of 11
32. Tippecanoe County Jail's practice or policy of opening mail that has been marked as legal mail outside the presence of the inmate to whom it is addressed violates the First and Fourteenth Amendments to the United States Constitution and Indiana law, IND. ADMJN. CODE tit. 210, r. 3-l-16(c).
33. Tippecanoe County Jail's practice or policy of refusing to penni! inmates reasonable access to the law library violates Indiana law, IND. ADMIN. CoDE tit 210, r. 3-l-16(c).
34. Tippecanoe County Jail's practice or policy of failing to respond to grievances filed by inmates within a reasonable period of time violates Indiana law, IND. ADMJN. CODE tit. 2IO,r. 3·1-15(a).
Request for Relief WHEREFORE, the plaintiffand the putative class respectfully request that this Court:
1. Accept jurisdiction of this cause and set it for hearing. 2. CertifY this cause as a class action with the class as defined above. 3. Declare that the defendant has violated the rights of the plaintiff and the class for the
reasous specified in paragraphs 35 through 38, above. 4. Issae a preliminary injunction, later to be made permanent, enjoining the defendant from
(a) opening inmates' incoming mail from courts outside the presence of the inmate to whom it is addressed; (b) opening inmates' incoming mail from attorneys that is clearly identifiable as legal mail outside the presence of the inmate to whom it is addressed; (c) failing to permit inmates to have reasonable access to the law library; and (d) failing to respond to grievances filed by inmates within a reasonable period oftime. 5. Award the plaintiff and the class their coats and reasonable attorneys' fees pursuant to 42
u.s.c. § 1988.
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case 4:09-cv-00006-PRC document 1 filed 01/02/09 page 10 of 11

6. Award all other proper relief.

Respectfully submitted,

i

vin M. Rose, No. 26565-53

1\CLU of Indiana 1031 E. Wasbington St.

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Indianapolis, IN 46202

Ph: 317/635.4059, x231 Fax: 317/635.4105

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<grose@aclu-in.org>

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J. Falk, No. 6777-49 CLU of Indiana 1031 E. Washington St. Indianapolis, IN 46202 Ph: 317/635.4059, x229 Fax: 317/635.4105 <kfalk@aclu-in.org>
Attorneys for the plaintiff and the putative class

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case 4:09-cv-00006-PRC document 1 filed 01/02/09 page 11 of 11 VERIFICATION
I hereby verify, under penalties for pe!jury, that the foregoing statements are true and correct to the best of my information and belief.
rfa DATE 0 ?. ' Z!>OS
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 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA HAMMOND DIVISION AT LAFAYETTE

JEFFREY MARK OLSON, on his own behalf )

and on behalf of a class of those similarly

)

situated,

)

)

Plaintiffs,

)

)

v.

)

)

TRACY BROWN, in his official capacity as )

Sheriff of Tippecanoe County,

)

)

Defendant.

)

Case No. 4:09-CV-6 JD

OPINION AND ORDER

This matter is before the Court on a Motion for Class Certification filed by counsel for

the Plaintiff Jeffrey Mark Olson (“Mr. Olson”) [DE 2, as supplemented at DE 60, DE 67]. Also

pending is a Rule 12(c) Motion for Judgment on the Pleadings filed by counsel for the

Defendant Tracy Brown, Sheriff of Tippecanoe County (“Sheriff Brown”) [DE 19, as

supplemented at DE 61].1

Sheriff Brown supports the Court’s ruling on the Motion for Judgment on the Pleadings

before ruling on the Motion for Class Certification, while Mr. Olson would have it the other way

around, or would support simultaneous rulings. However, the Court has resolved to determine,

first, whether class certification is proper, and second, whether a judgment on the pleadings is

proper, consistent with the directives of the United States Supreme Court and the Seventh

Circuit. See Eisen v. Carlisle and Jacquelin, 417 U.S. 156, 177 (1974); Thomas v. City of Peoria,

1Although this case was characterized on appeal as a Motion to Dismiss, Olson v. Brown, 594 F.3d 577, 584 (7th Cir. 2010), the parties’ supplemental briefs confirm that the motion is in fact one for judgment on the pleadings.

580 F.3d 633, 635 (7th Cir. 2009) (“First ruling on the merits of the federal claims, and then
denying class certification on the basis of that ruling, puts the cart before the horse.”) (collecting
cases). Employing this process further comports with the Seventh Circuit’s conclusion that “this
case would be moot if Olson had brought his claims individually . . . [because he] sought
injunctive relief and is no longer subject to the conditions that formed the basis of his
complaint.” Olson v. Brown, 594 F.3d 577, 580 (7th Cir. 2010). “If the district court certifies the
class, the case can proceed to the merits for the certified class of plaintiffs.” Id. at 584.
Accordingly, the Court considers whether it is proper to allow this case to proceed as a class
action.
I. FACTUAL BACKGROUND
On January 2, 2009, Mr. Olson filed a “verified class action complaint for declaratory
and injunctive relief” pursuant to 42 U.S.C. § 1983 and Indiana law, seeking to enjoin the
practices of the Tippecanoe County Jail and naming Sheriff Brown in his official capacity as the Defendant [DE 1]. Mr. Olson sues on his behalf,2 and on behalf of “any and all persons
currently confined, or who will in the future be confined, in the Tippecanoe County Jail.” [DE 1
at ¶ 6]. Further, the complaint seeks injunctive relief with respect to four areas related to
incarceration at TCJ:
1) Inadequate grievance procedure (210 I.A.C. 3-1-15(h));
2Mr. Olson’s standing to initially sue is uncontested. Mr. Olson satisfied each of the Article III requirements for standing to sue by alleging an actual “injury in fact” that is concrete and particularized and is fairly traceable to the challenged action of the defendant and likely to be redressed by a favorable decision. Arreola v. Godinez, 546 F.3d 788, 794-95 (7th Cir. 2008) (stating that “it is best to confine the term ‘standing’ to the Article III inquiry and thus to keep it separate from the plaintiff’s entitlement to relief or [the plaintiff’s] ability to satisfy the Rule 23 criteria.”). Mr. Olson had standing when he filed the complaint seeking injunctive relief because he was incarcerated in the Tippecanoe County Jail experiencing the alleged unlawful actions of the defendant.
2

2) Inadequate law library access (210 I.A.C. 3-1-15(a)); 3) Opening of mail from the courts outside of an inmate’s presence (210
I.A.C. 3-1-16(c)); and 4) Opening of mail from legal organizations and attorneys outside of an
inmate’s presence (210 I.A.C. 3-1-16(c)). [DE 60 at 2-3]. The complained of conditions of incarceration are alleged violations of the Indiana Administrative Code regulations, as identified. Also, the jail’s handling of court and legal mail are alleged to violate the First and Fourteenth Amendments to the United States Constitution. On January 20, 2009, Sheriff Brown removed the case from Tippecanoe County State Court to this Court based upon federal question jurisdiction and supplemental jurisdiction [DE 4].
The following uncontested facts are relevant to the pending motions. By way of background, Mr. Olson was sentenced on or about November 1, 2003, to ten years in the Indiana Department of Corrections. While pending transfer to a different facility, he was held at the Tippecanoe County Jail from August 29, 2008 to January 15, 20093 [DE 60 at p. 2]. During this time he experienced problems, and specifically alleges that while incarcerated at the jail, he received mail correspondence both from various courts and attorneys which was opened by jail staff outside of his presence, even though the outside of each envelope was marked either with the return address of a court or with the phrase “legal mail.” [DE 1 at ¶¶ 14, 16, 18-19]. Mr. Olson submitted grievances to jail staff following incidences occurring on September 8 and October 17, 2008, wherein an envelope from a court was opened outside of his presence that contained documents involving a lawsuit in which Mr. Olson was representing himself [DE 1 at
3Although Mr. Olson was transferred from TCJ, the Seventh Circuit has determined that the inherently transitory exception to the mootness doctrine prevented dismissal of this case, and remanded the case for consideration of the pending motions. Olson v. Brown, 594 F.3d 577 (7th Cir. 2010).
3

¶¶ 15, 17; DE 1-2 at p. 1, 3]. The jail staff did not respond to either grievance, and Mr. Olson filed grievances concerning the jail’s failure to respond and appealed the original grievances [DE 1 at ¶¶ 15, 17; DE 1-2 at p. 2, 4]. No response was given. Id.
On September 18, 2008, Mr. Olson requested that he be permitted to visit the law library in order to conduct legal research concerning pending legal proceedings for which he was representing himself [DE 1 at ¶ 20]. Mr. Olson’s request was denied, and despite subsequent requests to visit the law library, he was never permitted to do so. Id. On September 18, Mr. Olson submitted a grievance concerning his not being given access to the law library [DE 1 at ¶ 21; DE 1-2 at p. 5]. The jail staff did not respond, and Mr. Olson submitted a grievance concerning the failure to respond and he appealed the original grievance [DE 1 at ¶ 21; DE 1-2 at p. 6]. No response was given. Id.
Between his arrival at the jail on August 29, 2008, and the filing of his complaint, Mr. Olson submitted at least twenty-one grievances and grievance appeals to the jail staff [DE 1 at ¶ 22]. The jail never responded to any of them. Id. Mr. Olson filed grievances over the conduct which he opposes,4 and maintained a journal recounting the precise language of each grievance and each grievance appeal [DE 1 at ¶ 12].
On October 25, 2008, Mr. Olson submitted a grievance to the jail staff concerning the TCJ’s failure to respond to grievances [DE 1 at ¶ 23; DE 1-2 at p. 7]. The jail staff did not respond to this grievance, and on November 7, 2008, Mr. Olson submitted an appeal of the grievance that received no response [DE 1 at ¶ 23; DE 8]. No response was given. Id.
4Sheriff Brown asserts that there is no indication that Mr. Olson filed a grievance specifically complaining that mail sent to him from an attorney was opened outside of his presence [DE 61-1], although Mr. Olson did complain that legal mail procedures where not being complied with by TCJ.
4

The repeated lack of response to grievances and appealed grievances occurred, despite

the fact that the jail employs a grievance policy to address inmate concerns [DE 1 at ¶ 13]. Once

an inmate files a grievance, the jail is responsible for responding to the grievance within seven

days. Id. If the inmate does not agree with the decision, he or she may appeal the decision. Id.

The jail then has fifteen days to respond to the appeal. Id.

As a temporary detention center, the parties stipulate that the following statistics

regarding the Tippecanoe County Jail inmate population as of February 20, 2009 represented a

typical portrait of the inmate population at any given time: the jail housed 529 inmates; 128

inmates had been incarcerated for less than 30 days; 119 inmates had been incarcerated between

30 and 90 days; 130 inmates had been incarcerated between 90 and 180 days; 121 inmates had

been incarcerated between 180 and 365 days; 41 inmates had been incarcerated for more than

365 days; and the average length of stay for the 529 inmates was 139 days [DE 18 at ¶¶ 1-2].

Mr. Olson has filed affidavits of fifty-three inmates detailing their experiences with jail staff

opening their legal mail outside of their presence, denying them access to the law library, and

failing to respond to their grievances [DE 12-3 through 12-28; DE 27-3 through 27-9; DE 31-2

through 31-21]. Specifically, the affidavits reveal the following:

•

At least forty-two inmates who submitted affidavits have had legal mail,

sometimes several pieces of mail, from their attorney or attorneys opened

outside of their presence;

•

At least twenty-nine inmates who submitted affidavits have had legal mail,

sometimes several pieces of mail, from courts opened outside of their

presence;

•

At least thirty inmates who submitted affidavits have been entirely denied

access to the law library at the jail, including several inmates representing

themselves in one or more legal proceedings; and,

5

•

At least forty-four inmates who submitted affidavits have either filed

grievances that have not received a response or been refused the form

necessary to file a grievance in the first place.

Id.

Since Mr. Olson’s transfer from Tippecanoe County Jail on January 15, 2009, he has

been kept apprised of all developments in this case and wishes to remain involved in the

litigation [DE 55-1 at ¶¶ 2-5]. Mr. Olson is in regular contact with his attorney and intends to

make himself available for any court hearings or depositions that might be required of him in this

cause. Id.

II. ANALYSIS

Federal Rule of Civil Procedure 23 governs the certification of class actions in federal

court. Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2548 (2011). Rule 23(a) ensures that the

named plaintiffs are appropriate representatives of the class whose claims they wish to litigate.

Id. at 2550. The Rule’s four requirements—numerosity, commonality, typicality, and

adequacy—effectively limit the class claims to those fairly encompassed by the named plaintiff’s

claims. Id. (citations and internal quotations omitted). If all of these prerequisites are met, a

court must also find that at least one of the subsections of Rule 23(b) is satisfied. In this case,

Mr. Olson only seeks class certification under Rule 23(b)(2), which applies when “the party

opposing the class has acted or refused to act on grounds that apply generally to the class, so that

final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a

whole.” “Failure to meet any of the Rule’s requirements precludes class certification.” Arreola v.

Godinez, 546 F.3d 788, 794 (7th Cir. 2008). The Plaintiff, as the party seeking class

certification, assumes the burden of demonstrating that certification is appropriate. Trotter v.

6

Klincar, 748 F.2d 1177, 1184 (7th Cir. 1984); see Wal-Mart, 131 S.Ct. at 2551 (“A party seeking class certification must affirmatively demonstrate his compliance with the Rule—that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.”).
A district court has broad discretion to determine whether certification of a class action lawsuit is appropriate. Arreola, 546 F.3d at 794. The United States Supreme Court has made clear, however, that the district court is to perform a “rigorous analysis” to determine that the prerequisites of Rule 23 are satisfied when a class is to be certified because actual, not presumed, conformance with Rule 23(a) remains indispensable. Wal-Mart, 131 S.Ct. at 2551-52 (citing Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160-61 (1982)). Frequently, that “rigorous analysis” will entail some overlap with the merits of the plaintiff’s underlying claim, and this cannot be helped. Id. (noting that sometimes Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177 (1974) is mistakenly cited for the proposition that the merits of the claims for relief may not be considered in adjudicating the motion for class certification, and clarifying that such a proposition is “the purest dictum and is contradicted by other cases.”). The purpose of the “rigorous analysis” is not to test the merits of the claim, however, but to determine whether the claim meets the requirements of Rule 23(a). See Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 677 (7th Cir. 2001). Thus, while “nothing . . . prevents the district court from looking beneath the surface of a complaint to conduct the inquiries identified in that rule and exercise the discretion it confers,” the modern approach to class actions “depends on making a definitive class certification decision before deciding the case on the merits, and on judicial willingness to certify classes that have weak claims as well as strong ones.” Id.
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A. Nature of the Class Claims Before the Court can conduct the rigorous analysis of the Rule 23(a) factors, it must first
understand what the claims are because some types of claims are more susceptible to class treatment than others. Therefore, the Court will first determine the legal nature of Mr. Olson’s claims, before proceeding to determine whether Rule 23(a)’s requirements are met and ultimately whether this class should be certified under Rule 23(b)(2).
1. Federal Constitutional Claims Mr. Olson presents this case in his pleadings and his legal arguments in support of class certification as a free speech issue under the First Amendment: under this theory, the jail’s mail handling process is unlawful because it impinges on inmates’ right to communicate confidentially with their attorneys (and the courts). The Sheriff, on the other hand, characterizes the suit as asserting a violation of the inmates’ right to access to the courts, requiring proof of some actual non-frivolous claim that has been or is being impeded. There is some support for both parties’ positions, but neither position correctly captures the Seventh Circuit’s present approach to this issue. In Wolff v. McDonnell, 418 U.S. 570, 574 (1974), the Supreme Court first considered whether the constitution limits prison authorities’ ability to open and inspect incoming legal mail. In that case, Nebraska inmates challenged a prison policy of opening (but not reading) letters from attorneys in the inmates’ presence. Id. at 575. The Court discussed several bases upon which a prohibition of opening or inspecting legal mail might be based, including First Amendment protections against any censoring of inmate mail, Sixth Amendment protections against intrusion into the attorney-client relationship in a criminal setting, and Fourteenth Amendment due process guarantees of access to the courts. Id. at 575–76. The Court identified weaknesses in each basis, but declined to decide which, if any,
8

right was operative because it held that even assuming one or more constitutional rights were implicated, the prison policy of opening (but not reading) legal mail in the presence of the inmate did not infringe those rights.
After Wolff, courts, including the Seventh Circuit, have acknowledged that “when a prison receives a letter for an inmate that is marked with an attorney’s name and a warning that the letter is legal mail, officials potentially violate the inmate’s rights if they open the letter outside of the inmates presence.” Kaufman v. McCaughtry, 419 F.3d 678, 686 (7th Cir. 2005). Several courts, including the Seventh Circuit, have identified the pertinent constitutional right as the right to court access under the Fourteenth Amendment’s due process clause. See id. The nature and scope of this right, however, are crucial: there is no per se right to “confidentiality of legal mail” but instead a right to access the courts. In the related context of adequate prison libraries and legal assistance programs, the Supreme Court, however held in Lewis v. Casey, 518 U.S. 343, 351 (1996), that “[i]nsofar as the right vindicated by Bounds is concerned, ‘meaningful access to the courts is the touchstone,’ and the inmate therefore must go one step further and demonstrate that the alleged shortcomings in [a] library or legal assistance program hindered his efforts to pursue a legal claim.” The Seventh Circuit has confirmed that Lewis informs mailhandling claims as well: “there must likewise by [sic] a showing of hindrance in a claim of interference with a prisoner’s communications with his lawyer.” Guarjardo-Palma v. Martinson, 622 F.3d 801 (7th Cir. 2010). But Guarjardo-Palma also noted that “proof of a practice or reading a prisoner’s correspondence with his lawyer should ordinarily be sufficient to demonstrate hindrance.” Id. at 805. This is because a prisoner’s knowledge of such a practice (whether or not it was ever employed on his own mail) “will to a high probability reduce the candor of those communications.” Id.
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Some courts have also held that the First Amendment’s free speech provision specially protects “the right to hire and consult an attorney,” and “[b]ecause the maintenance of confidentiality in attorney-client communications is vital to the ability of an attorney to effectively counsel her client, interference with this confidentiality impedes the client’s First Amendment right to obtain legal advice.” Denius v. Dunlap, 209 F.3d 944, 953–54 (7th Cir. 2000). The Third Circuit Court of Appeals applied this reasoning to support special protections for legal mail within prisons in Jones v. Brown, 461 F.3d 353 (3d. Cir. 2006). There, it held that “[a] state pattern and practice, or, as is the case here, explicit policy, of opening legal mail outside the presence of the addressee inmate interferes with protected communications, strips those protected communications of their confidentiality, and accordingly impinges upon the inmate’s right to freedom of speech.” Id. at 359.
The Seventh Circuit appears to have distanced itself from the view that special protections for legal mail are rooted in the right to free speech. In Guarjardo-Palma, the court commented that while “a number of cases characterize the reading of mail to or from a prisoner’s lawyer in a pending or impending litigation as infringing the right of free speech rather than or in addition to the right of access to the courts” because the destruction of the security of confidentiality chills the individual’s ability to engage in protected speech, “it seems more straightforward to base the concern with destroying that confidentiality on the right of access to the courts.” 622 F.3d at 802. But while Guarjardo may indeed have established that, in the Seventh Circuit, challenges to the handling of legal mail are actionable only as access to court claims, that is a question of the merits of the free speech claim, not whether it can be resolved on a class-wide basis.
An additional complexity is the scope of legal mail that is protected, either as protected 10

speech under the First Amendment or as an adjunct to the right to access the courts under the Fourteenth. Some Courts of Appeals have defined the term broadly to include not only attorneyclient communications, but also communications from government agencies and courts. See, e.g., Sallier v. Brooks, 343 F.3d 868, 876–77 (6th Cir. 2003) (free speech protection extends to court mail); Bieregu v. Reno, 59 F.3d 1445, 1452 (3d Cir. 1995) (same), abrogated on other grounds by Lewis v. Casey, 518 U.S. 343; Ramos v. Lamm, 639 F.2d 559, 582 (10th Cir. 1980) (“legal mail” includes “privileged correspondence with counsel, public officials, and agencies”). The Seventh Circuit has been critical of the need for expansive protection of mail, such as public court filings, that are not in any sense confidential. See Guarjardo-Palma, 622 F.3d at 804; Antonelli v. Sheahan, 81 F.3d 1422, 1431 (7th Cir. 1996) (“[P]rison employees can open official mail sent by a court clerk to an inmate without infringing on any privacy right.”); Martin v. Brewer, 830 F.2d 76, 78 (7th Cir. 1987) (“It is . . . not apparent to us why [court mail] should be regarded as privileged and how [the prisoner] could be hurt if the defendant read these documents before or after [the prisoner] does.”). The court has acknowledged, however, that some non-attorney mail—including mail originating from a court—might be confidential and require special treatment. See Guarjardo-Palma, 622 F.3d at 804 (“Suppose the prisoner were asking that materials that he had submitted be held in camera or withheld from his adversary.”); Castillo v. Cook County Mail Room Dep’t, 990 F.2d 304 (7th Cir. 1993) (holding that complaint that jail officials had opened two letters from a court and one from the Department of Justice outside of an inmate’s presence could not be considered “frivolous” under the then-current interpretation of 28 U.S.C. § 1915A); Martin, 830 F.2d at 78 (noting that mail from public officials is potentially protected).
Thus, whatever the ultimate merits of the constitutional claims, the Court identifies three 11

separate claims that require individualized consideration at the class certification stage. First, does the practice of opening legal mail (however defined) violate prisoners’ free speech rights under the First Amendment? Second, does the prison have a practice or policy of opening mail from attorneys outside of the presence of the addressee prisoners, and if so does this practice or policy violate some prisoners’ right to access the courts under the Fourteenth Amendment? Third, does the prison have a pattern or practice of opening mail from courts outside of hte presence of the address prisoners, and if so does this practice or policy violate some prisoners’ right to access the courts under the Fourteenth Amendment?
2. State-Law Claims Mr. Olson’s other claims are relatively more straightforward. He alleges that three distinct policies or practices of the Tippecanoe County Jail violate provisions of the Indiana Administrative Code. First, Mr. Olson and at least thirty other prisoners complain that the jail has a practice or policy of refusing to permit inmates to access the law library in violation of 210 IAC 3-1-15(a), which provides that “[j]ail inmates not represented by counsel shall have reasonable access to an adequate law library.” The parties appear to disagree over whether prisoners who are represented by attorneys in one or more cases are entitled to law library access, but the Court need not resolve that question at this point because class certification will be appropriate under either approach. See infra II.B.1 & n.5. Second, Mr. Olson complains that the jail’s mail-handling policies implicate not only the federal constitution but also the express provisions of 210 IAC 3-1-16(c), which forbids the opening of “[c]orrespondence to or from government officials, courts, attorneys, or representatives of the public news media” except “in the presence of the addressee for the purpose of examining the contents for contraband or prohibited property.” Finally, Mr. Olson alleges that the jail has a practice or policy of failure to
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respond within a reasonable amount of time to prisoners’ written grievances, in violation of 210 IAC 3-1-15(h). B. Class Certification
Rule 23(a) sets four requirements: numerosity, commonality, typicality, and adequacy of representation. “A party seeking class certification must affirmatively demonstrate his compliance with the Rule—that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.” Wal-Mart, 131 S.Ct. at 2551. Further, as discussed above, the Court is to perform a “rigorous analysis” to determine that the prerequisites of Rule 23 are satisfied when a class is to be certified because actual, not presumed, conformance with Rule 23(a) remains indispensable. Id. at 2551-52 (citing Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160-61 (1982)). Frequently, that “rigorous analysis” will entail some overlap with the merits of the plaintiff’s underlying claim, and this cannot be helped. Id. A district court has broad discretion to determine whether certification of a class action lawsuit is appropriate. Arreola, 546 F.3d at 794.
1. Rule 23(a)(1): Numerosity The first requirement under Rule 23(a) is that the purported class be “so numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). To be impracticable, joinder need not be impossible, but instead must be shown to be inconvenient and difficult. See Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir. 1993); Gomez v. Illinois State Bd. of Ed., 117 F.R.D. 394, 398–99 (N.D. Ill. 1987). When determining if joinder of all class members is impracticable, courts often consider many factors, including: the class size; judicial economy arising from the avoidance of a multiplicity of actions; the ease of identification of members of the proposed class; the geographic dispersion of class members; the size of each plaintiff’s
13

claim; the financial resources of the class members; the ability of claimants to institute individual suits; and requests for prospective injunctive relief which would involve future class members; and any other factors relevant to the practicability of joining all the class members. Alba Conte & Herbert Newberg, Newberg on Class Actions § 3:6 (2002 & Supp. 2011); see also Gomez, 117 F.R.D. at 399 (listing some similar factors). “Mere speculation” and “conclusory allegations” of the class size will not support a finding that joinder is impractical. Arreola, 546 F.3d at 797. A court must rely on simple common sense when determining whether a class size meets the numerosity requirement. See Flood v. Dominguez, 270 F.R.D. 413, 417 (N.D. Ind. 2010) (citing Redmon v. Uncle Julio's of Ill., Inc., 249 F.R.D. 290, 294 (N.D. Ill. 2008)).
Mr. Olson asserts that he meets the numerosity requirement with respect to all of his claims because the jail operates near its capacity of 546 inmates, as demonstrated by jail records which reflect a roster of inmates at any given time, and the inmates are subjected to the alleged wrongful policies. Mr. Olson has also filed fifty-three inmate affidavits, in which the inmates complain of jail staff opening their legal and court mail outside of their presence, denying them access to the law library, and/or failing to respond to their grievances or refusing to provide the form needed to file a grievance. The inmate affidavits were made under oath and Sheriff Brown has not produced anything to suggest that they are false or untrustworthy.
The Court has identified several discreet claims in Mr. Olson’s complaint, and not all of them necessarily affect the same class of prisoners. To begin with some common considerations, the impracticability of joinder—which underlies the numerosity requirement—is enhanced by two factors beyond raw numbers. First, the class includes future members, and a significant number of them, if the sample from an early 2009 snapshot is representative. Such future members make joinder inherently impracticable because there is no way to know who they will
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be. See Gomez, 117 F.R.D. at 399 (finding that the inclusion of future members in a class of “Spanish-speaking children who are or will be enrolled in Illinois public schools, or who are eligible or will be eligible to be enrolled in Illinois public schools, and who should have been, should be, or who have been, assessed as limited English proficient” made joinder impracticable). Second, the inherently transitory nature of the class members makes their joinder in a single, non-class suit impossible, since only a portion of the class will have standing to bring their claims at any one time. See Ind. Prot. and Advocacy Servs. Comm'n v. Comm’r, Ind. Dept. of Corr., No. 1:08-cv-1317, 2010 WL 1737821 *1 (S.D. Ind. Apr. 27, 2010) (“[B]oth the transient nature of the inmate population and the request for injunctive relief that will also inure to the benefit of future, currently unknowable, class members likewise support a finding that joinder is impracticable.”); see also Olson v. Brown, 594 F.3d 577, 584 (7th Cir. 2010) (“The pervasive nature of these claims, as evidenced by the fifty-three affidavits outlining problems similar to those complained of by Olsen, makes it likely that TCJ’s alleged practices of opening inmates’ legal mail, denying inmates access to the law library, and failing to respond to inmates’ grievances will continue.”).
Moving to the specifics of the individual claims, the Sheriff does not dispute that some of the claims in the complaint affect a jail-wide class of prisoners. The Court agrees with the parties that a jail-wide class is appropriate for the state-law claims that the prison’s grievance procedure and mail-handling policy do not conform to the provisions of the Indiana Administrative Code. To these, the Court would add that the federal claim that the mail handling policy itself violates the prisoners’ free speech rights under the First Amendment by chilling protected confidential communications is also a jail-wide class. Given that the jail operates near its capacity of 546 inmates, there is no question that this consideration alone makes the class so numerous that
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joinder would be impracticable. That leaves three remaining claims, at least according to the Court’s delineation above:
the claim that the law library access policies violate the Indiana Administrative Code and the two claims that the mail handling policies for mail from attorneys and the courts, respectively, violate the federal constitutional right to access to the courts under the Fourteenth Amendment. With regard to the law library access claim, Sheriff Brown argues that the class of inmates affected by the alleged library access policies is not jail-wide because the code provisions in question specifically apply only to those inmates not represented by an attorney. The Court does not agree. The complaint alleges that there is a policy of denying inmates adequate law library access, regardless of whether they are represented by counsel. It may be true (on the merits) that some prisoners, including some of those who filed the affidavits, were not entitled to the library access they were seeking on claims in which they were already represented. But just because an inmate is represented by counsel on a particular matter—perhaps a criminal appeal or postconviction petition or a civil rights action—does not necessarily mean that such an inmate is never entitled to reasonable law library access under the regulations. The regulation at issue states that “[j]ail inmates not represented by counsel shall have reasonable access to an adequate law library.” 210 I.A.C. 3-1-15. It does not say (and the Court is not aware of any judicial interpretations suggesting) that this provision only applies when an inmate has a currently pending pro se claim. And since no inmate is represented by counsel for all conceivable issues, every inmate may have an alleged right under the regulations to access the law library, whether to research pending claims, explore potential claims, or perhaps just read about the law. Whether the jail’s actual policies or practices deny reasonable law library access would be a question for the merits, but the affidavits before the court are sufficient to satisfy the Court’s rigorous
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analysis that the jail has a jail-wide policy of restricting adequate law library access, and that this
is the policy the class asks the Court to enjoin. This is enough to demonstrate the existence of a
jail-wide class. Indeed, the affidavits in the record show that in many cases, the same prisoners
were simultaneously pursuing attorney-represented cases and pro se cases.5 Regardless, the
Court finds that the relevant class of prisoners for the law library access claims is all those
prisoners who are or will be incarcerated in the Tippecanoe County Jail, and that this class is
sufficiently numerous to support class certification.
Second, with regard to the federal access to court claims, the proper class is not jail-wide
but rather limited to those prisoners who are being hindered in bringing non-frivolous claims by
the alleged policies. This is because, as explained above, interference with confidential legal
correspondence only potentially violates the right to access the courts, so only those prisoners
5Even if the class were more narrowly defined, the Court would still find joinder impracticable. A look at the inmate affidavits filed in this case reveal that of the thirty inmates who were not given law library access, twelve inmates stated that they requested and were denied access to the law library to conduct research in cases in which they were proceeding pro se. See Affidavits of Timothy Adams [DE 12-4], Cornelius Powell [DE 12-5], Forrest Elliott [DE 12-6], Roderick Elam [DE 12-11], Carlo Palermo [DE 12-18], Edward Luman [DE 12-23], Wesley Kelly [DE 31-3], Seth Darland [DE 31-6], Tony Modesitt [DE 31-7], George Chapman [DE 31-10], Nikki Snapp [DE 31-12], and Christopher Stivers [DE 31-15]. An additional eighteen inmates did not indicate whether they were representing themselves, but they did state that they wanted to go to the law library to conduct research on a “pending case.” See Affidavits of Anthony Massengill (pending “child support” case) [DE 12-3], Timothy Reynolds [DE 12-9], Deon Harris [DE 12-10], Tromaine Langham [DE 12-12], Donald Anderson [DE 12-14], Jamaal Moore [DE 12-16], Ronald Cheesman [DE 12-17], Qune Vantrease [DE 12-19], Kenneth Norwood [DE 12-20], Rami Wahood [DE 12-24], Mark O'Connor [DE 12-25], Jonathon Haniton [DE 12-26], Michael Hayenga [DE 12-27], James Johnson [DE 27-4], Jacob Parker [DE 31-13], Kelvin Bogan [DE 31-14], Edward Dugan [DE 31-19], and Antonio Sessions [DE 31- 21]. Of these eighteen inmates, neither Qune Vantrease [DE 12-19] nor James Johnson [DE 27-4] indicated that they were represented by any counsel on any matters, and they did not assert that mail from any attorneys was opened by TCJ. These numbers, combined with the inherent impracticability of joinder in a case involving transitory and future members, would independently satisfy the numerosity requirement.
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who actually have or will have non-frivolous legal claims are conceivably harmed by the prison’s policies. Sheriff Brown argues that “there is no information at all as to how many [inmates] were prosecuting non-frivolous legal claims, whether the attorneys in question were assisting them with those legal claims, and whether the content of the mail was such that communication was impaired from inmate to attorney with respect to the legal claim in question.”
The Court finds the class of inmates who share an access to courts claim based on the alleged policy of opening attorney mail outside the presence of the addressee prisoner to be sufficiently numerous that joinder would be impracticable for several reasons. It is not true, as the Sheriff claims, that there is no information about the number of inmates who may have had non-frivolous legal claims impeded by the alleged policies. First, as the Court has already noted, Guarjardo-Palma suggests that the putative class in this case includes every prisoner who has a non-frivolous claim because the existence of the alleged mail-handling policy would itself demonstrate a hindrance to that claim. Second, thirty affidavits attest that each inmate was represented by counsel in some matter, which itself suggests that these claims were nonfrivolous. Finally, the Court notes that the affidavits submitted reflect only a representative sample of the prison population at the time Mr. Olson sought class representation. Commonsense dictates that the number of prisoners with attorneys who have non-frivolous legal claims at any given time is somewhat—perhaps significantly—larger than the sum total of the affidavits submitted.
The Court has concerns, however, about the numerosity of the class of prisoners whose non-frivolous claims have been hindered by the alleged policy of opening court mail outside the presence of the addressee prisoner. Admittedly, the affidavits submitted in support of class
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certification all contain the rote statement that the practice of opening mail either from attorneys or from courts “hampers my ability to communicated with my attorneys and to represent myself in cases that I have filed.” What neither Mr. Olson nor the affiants offer, however, is some plausible explanation of how the practice of opening mail from the courts hampers the prosecution of their cases. Unlike mail from attorneys, mail from courts is generally not confidential but rather a matter of public record. See Guarjardo-Palma, 622 F.3d at 804; Antonelli v. Sheahan, 81 F.3d 1422, 1431–32 (7th Cir. 1996); Martin v. Brewer, 830 F.2d 76, 78 (7th Cir. 1987). The logic of Guarjardo-Palma therefore does not extend to mail from courts because a practice of reading such mail does not necessarily undermine the candor of those communications. Of course, as the court recognized in Guarjardo-Palma (and elsewhere), some mail to or from a court may be confidential—the point of in camera filings, for example, would be defeated if prison officials could read them at will. Perhaps there are other ways in which the interception of court mail might hamper a prisoner’s ability to represent himself. But the complaint, affidavits, and briefs provide no basis for the Court to determine that any prisoner’s claims (including Mr. Olson, which causes other problems that will be discussed infra) are actually being hindered by the alleged policy, much less a group sufficiently numerous to permit class certification for this claim.
2. Rule 23(a)(2) & (3): Commonality and Typicality The second and third requirements under Rule 23(a) are that the plaintiff must show that “there are questions of law or fact common to the class,” and that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(2), (a)(3). Concerning the commonality requirement, claims of individual class members may arise from a “common nucleus of operative fact,” which is usually satisfied where the defendant
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engaged in standardized conduct towards members of the proposed class. Keele v. Wexler, 149 F.3d 589, 594 (7th Cir. 1998). Class certification cannot be defeated simply because there are some factual variances among the proposed members. Rosario v. Livaditis, 963 F.2d 1013, 1017 (7th Cir. 1992); see Wal-Mart, 131 S.Ct. at 2556 (“We consider dissimilarities not in order to determine (as Rule 23(b)(3) requires) whether common questions predominate, but in order to determine (as Rule 23(a)(2) requires) whether there is “[e]ven a single [common] question.”) (emphasis in original). The question of typicality is closely related to the question of commonality. Rosario, 963 F.2d at 1018. A claim is typical if it “arises from the same event or practice or course of conduct that gives rise to the claims of other class members and . . . are based on the same legal theory.” Id. Even though some factual variations may not defeat typicality, the requirement is meant to ensure that the named representative’s claims have the same essential characteristics as the claims of the class at large. Oshana v. Coca-Cola Co., 472 F.3d 506, 514 (7th Cir. 2006) (citations omitted).
The Defendant does not contest that Mr. Olson could meet the commonality and typicality requirements of the claims made pursuant to the Indiana Administrative Code. The Court agrees that Mr. Olson has made the requisite showing because questions of law or fact are common to the class, that is, whether grievances were investigated and responded to in accordance with 210 I.A.C. 3-1-15(h), whether jail inmates not represented by counsel in pending cases were provided reasonable access to the law library in accordance with 210 I.A.C. 3-1-15(a), and whether mail from courts and attorneys was opened by jail officials outside the presence of the inmates in violation of 210 I.A.C. 3-1-16(c). Unlike the situation in Wal-Mart, where the plaintiffs could not demonstrate that the entire company operated under a general policy of discrimination, or a specific practice that tied all of their claims together, 131 S.Ct. at
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2555-56, in this case, Mr. Olson has shown that the TCJ’s specific practices relative to the handling (or non-handling) of grievances, opening of legal mail, and restricting access to the law library, have caused the inmates to suffer the same potential injury, which ties all of their jail standards claims together. See Tyson v. Grant County Sheriff, No. 1:07-cv-10, 2007 WL 1395563 (N.D. Ind. May 9, 2007) (finding the commonality and typicality requirements met with respect to claims alleged under state law and under the Fourteenth and Eighth Amendments, where the proposed class of jail inmates were subjected to the same practice of jail overcrowding); see also Hassine v. Jeffes, 846 F.2d 169, 177 (3d. Cir. 1988). It is the practice or standard course of conduct that TCJ has generally employed with respect to the grievance process, mail handling, and making the library accessible, that gives rise to the claims of Mr. Olson and all of the other class members—claims which are all based on the same legal theory. Moreover, the question of whether Indiana state law provides a private right of actions to enforce violations of prison regulations is itself a common question of law that will be central to this case.
Sheriff Brown does challenge the commonality and typicality of the federal constitutional claims. Because each of the claims that the Court identified above involve different harms and different methods of proving those harms, the Court will consider the commonality and typicality of each claim separately. First, with regard to Mr. Olson’s free speech claims under the First Amendment, the Court finds that the commonality and typicality elements are easily met. As the Court understands this theory, Mr. Olson would need to prove that there is in fact a practice of opening legal mail outside of the prisoners’ presence and that this practice chills the prisoners’ ability to exercise their free speech right to communicate confidentially with their attorneys (or the courts). See Jones v. Brown, 461 F.3d at 358–60. Mr. Olson’s claims in this
21

regard are exactly the same as the class: according to his complaint, and he thus satisfies the typicality requirement of Rule 23(a)(3).
The Sheriff’s challenge to certification of any federal constitutional claims seems to be that the claims are cognizable, if at all, only as an access to courts claim, but this argument goes entirely to the merits of the First Amendment claim and not to the appropriateness of class certification. The Court has already noted that the Seventh Circuit appears to agree with Sheriff Brown that freedom of speech does not do any additional work for legal mail than it does for regular prison mail, and that the appropriate claim is an access to courts claim. See GuarjardoPalma, 622 at 802. But if that is the case, it means that the entire class will lose together, not that the class should not be certified in the first place. Moreover, even if current circuit precedent precludes their claims, there is no reason that Mr. Olson cannot ask the Seventh Circuit to reconsider its previous holdings or seek to challenge the circuit law in the Supreme Court.
Second, the access to courts claim based on the handling of attorney mail also satisfies the commonality requirement for similar but slightly different reasons. There are at least some common questions for the claim that the prison’s handing of confidential attorney-client mail violates putative class members right to access the courts. Unlike the free speech claims, the opening of attorney mail only potentially violates the right to access the courts because the claimant must also demonstrate some hindrance to a non-frivolous claim. But, in practice, the important common question that will determine this case is the same because the access to court claim would require proof that the jail has a practice of opening attorney-client mail, and this factual question is common to the class. See Wal-Mart, 131 S.Ct. at 2551 (“What matters to class certification . . . is not the raising of common ‘questions’—even in droves—but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of
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the litigation.” (quoting Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L.Rev. 97, 131–32 (2009)).
For the access to courts claim, like the free speech claim, the Court finds that the existence of a practice or policy is the lynchpin of the entire claim. As described above, the essential elements of an access to courts claim are that some nonfrivolous claim is or will imminently be hindered, and as the Seventh Circuit held in Guarjardo-Palma, this hindrance can be shown in the case of attorney mail simply by demonstrating that there is a practice of reading that mail. 622 F.3d at 805. If Mr. Olson is able to prove the alleged policy, he will have advanced the class claims significantly. If he fails, he will likely have failed to establish the class claims at all. Moreover, although the Rule 23(a)(2) inquiry into commonality is distinct from the inquiry into whether a Rule 23(b)(2) class seeking injunctive relief is appropriate, the common remedy sought in this case illustrates of the commonality of the claims themselves: the common claims—whether the alleged mail-handling policy exists and whether it violates the constitution—will result in common relief or none at all.6
Moreover, having established what the common questions are, it is clear that Mr. Olson’s claims are typical of the class. At the time of his complaint, he was subject to any prison-wide policy and has alleged that he was pursuing cases in various courts, so his claim ultimately depends on the existence of an unconstitutional policy or practice of opening mail from attorneys outside the presence of prisoners. If Mr. Olson is entitled to injunctive relief, the entire class will
6It is also worth noting that this case is unlike cases wherein the plaintiffs pursue both money damages and uniform, class-wide equitable relief, which could jeopardize the Rule 23(b)(2) presumption of cohesion and homogeneity, because individual claims for compensatory or punitive damages typically require judicial inquiry into the particularized merits of each individual plaintiff’s claim. See Lemon v. Int’l Union of Operating Eng’rs, Local No. 139, AFL-CIO, 216 F.3d 577, 580 (7th Cir. 2000); Roe v. Bridgestone, 257 F.R.D. 159, 170-71 (S.D. Ind. 2009).
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be as well. This claim thus also satisfies the commonality and typicality requirements of Rule 23(a)(2) and (3).
The same cannot be said for the third federal claim, that the handling of prisoner mail from courts violates the prisoners right to access the Courts. While the existence of a particular mail handling policy is a question that is common to the putative class, that policy is not integral to the class claims in the same way as it is for attorney-mail. As already noted, the logic from Guarjardo-Palma does not apply in the same way to court mail because a policy of reading mail from courts does not automatically reduce the candor of communications between prisoners and courts. This means that if the alleged policy exists, it will hinder (or not) each class member in a different way. It is not obvious, therefore, that the common question of whether there is a policy of opening mail from courts outside the presence of prisoners will produce a common answer that will meaningfully advance the litigation. See Wal-Mart, 131 S.Ct. at 2551.
Moreover, even if the Court assumed that the common question of the existence of the alleged policy is sufficient to establish commonality, the class definitively fails the typicality requirement because Mr. Olson has not alleged that his claims were being hindered by the policy in any way. That means that even if Mr. Olson had established a sufficiently numerous class of prisoners who could plausibly claim that the practice of opening mail from courts is hindering non-frivolous legal claims, and that their claims could be meaningfully advanced by the resolution of the common question of whether or not such a policy exists, Mr. Olson cannot represent that class of prisoners because his own claim lacks an essential element the hypothetical class’s claims. In other words, even if there were a class to certify, Mr. Olson would not be a member of that class because there is no evidence that any of his claims have been hindered by the alleged policy. The Supreme Court, however, has “repeatedly held that ‘a class
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representative must be part of the class and ‘possess the same interest and suffer the same injury’ as the class members.’” General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 156 (1982) (quoting East Texas Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 403 (1977)). Because of this, the Court will not certify the class relative to this particular claim.
3. Rule 23(a)(4): Adequacy of Representation The final requirement of Rule 23(a) is that “the representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). Adequacy of representation is composed of two parts: “the adequacy of the named plaintiff’s counsel, and the adequacy of representation provided in protecting the different, separate, and distinct interest” of the class members. Retired Chicago Police Ass’n v. City of Chi., 7 F.3d 584, 598 (7th Cir. 1993). “A class is not fairly and adequately represented if class members have antagonistic or conflicting claims.” Rosario, 963 F.2d at 1018. Also, counsel for the named plaintiffs must be experienced and qualified and generally be able to conduct the litigation. See Eggleston v. Chi. Journeymen Plumbers’ Local Union No. 130, 657 F.2d 890, 896 (7th Cir. 1981). With respect to the first consideration, Sheriff Brown does not challenge the qualifications of attorneys Gavin Rose and Kenneth Falk, and concedes that they are more than adequate to serve as class counsel. The Court agrees that counsel are certainly skilled and experienced in this type of litigation, as evidenced by the fact that they were successful on appeal in this matter and have complied with the rules of this Court in seeking to certify the class. Mr. Rose also personally represents that he is skilled and experienced in this type of litigation. The Court believes that Mr. Olson and the class’ named counsel will work for the benefit of the proposed class in seeking relief that will protect the rights of class members both
25

known and to become known. Sheriff Brown does, however, challenge Mr. Olson fitness as a class representative on
several grounds, arguing that Mr. Olson is not an adequate representative of the absent class members because his criminal background includes a conviction for fraud on a financial institution, which make his credibility open to attack. Sheriff Brown further questions whether Mr. Olson could adequately represent class members because he may not have exhausted his administrative remedies with respect to the attorney-client mail handling claim, and because he cannot make a claim of inadequate law library access since he is represented by counsel.
The Court disagrees with Sheriff Brown on all counts. It is true that personal characteristics, such as the credibility and integrity of a putative class representative, have a direct bearing on the ability to adequately represent absent members of the class. Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 549 (1949). It is also true that a named plaintiff who has serious credibility problems or who is likely to devote too much attention to rebutting an individual defense may not be an adequate class representative. See CE Design Ltd. v. King Architectural Metals, Inc., 637 F.3d 721 (7th Cir. 2011); see also Schleicher v. Wendt, No. 1:02cv-1332, 2009 WL 761157 *3 (S.D. Ind. Mar. 20, 2009) (collecting cases where courts determined that a criminal fraud conviction undermines a proposed class representative’s adequacy to represent the class). However, Sheriff Brown points to no case law suggesting that Mr. Olson’s conviction for a felony crime of dishonesty renders him inadequate to represent the proposed class per se. See Turner v. Glickman, 207 F.3d 419 (7th Cir. 2000) (class representative was a convicted felon representing a class of other convicted felons made ineligible for federal benefits due to drug convictions); Roe v. Bridgestone Corp., 257 F.R.D. 159, 168-69 (S.D. Ind.
26

2009) (collecting cases where attacks on the named class representative’s credibility was sufficient to render him or her inadequate).
Here, Mr. Olson’s credibility is being questioned on the basis of an almost eight year old conviction obtained pursuant to a plea agreement which has no substantive relation to this case. See Olson v State, 909 N.E.2d 517 (Ind. Ct. App. 2009) (table opinion). Relative to this case, Mr. Olson has already filed various affidavits in support of the class action, none of which are contested as being incredible. These facts suggest that any questions as to Mr. Olson’s credibility are not so pervasive so as to jeopardize the interests of the absent class members. As a result, the Court does not believe that Mr. Olson’s unrelated criminal history disqualifies him as an adequate representative for the proposed class.
Further, the Court finds that Mr. Olson’s being represented by counsel in some pending cases does not prevent him from bringing a claim for inadequate access to the law library. As explained above, the fact that a prisoner is represented in one case does not necessarily mean that he is not entitled to law library access in other cases in which he does not have an attorney. Mr. Olson alleged in his verified complaint that he has pending lawsuits in which he represents himself [DE 1 at ¶¶ 12, 14, 16, 18, 20]. Similar to the other potential class members who represent themselves in some but not all of their pending cases, Mr. Olson claims that he was entitled to reasonable access to the law library, and the Court finds that he can adequately represent the class in this respect.
The Court also disagrees that Mr. Olson cannot adequately represent the class with respect to his attorney-client mail claim because he may have failed to exhaust his administrative remedies, as required by 42 U.S.C. 1997e(a). This is an affirmative defense that would fail if the
27

grievance remedy was rendered unavailable by TCJ prison officials. See Kaba v. Stepp, 458 F.3d 678, 684-86 (7th Cir. 2006); Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006) (“Prison officials may not take unfair advantage of the exhaustion requirement, however, and a remedy becomes ‘unavailable’ if prison employees do not respond to a properly filed grievance or otherwise use affirmative misconduct to prevent a prisoner from exhausting.”). The class certification stage is not the place to resolve the merits of a particular defense, but the Court is satisfied that this affirmative defense will not be a significant factor in the ultimate resolution of this case. In fact, Mr. Olson, and the class he seeks to represent, allege that the jail has a practice of not responding to grievances or refusing to provide the form necessary to file a grievance in the first place, thus rendering the grievance process unavailable for purposes of exhaustion. Mr. Olson himself alleges that he filed twenty-one grievances and twenty-one grievance appeals which all received no response, and he indicates that those grievances concerned each of the issues alleged in his complaint sufficient to put the prison on notice of his complaints. The Court finds that at this stage the evidence is sufficient to show that Mr. Olson has the same interest as the class members in enforcing the jail’s grievance procedure and that Mr. Olson’s claims are typical of the class.
Lastly, even though Mr. Olson has since been transferred from TCJ, he has remained apprised of the case’s progress and he attests that he will remain diligently involved in the case and in regular contact with class counsel and make himself available for discovery. Mr. Olson understands the substance of his and the proposed class’ common legal position and he has shown a sufficient interest in the outcome to ensure vigorous advocacy. Under the present circumstances, Mr. Olson is adequate to represent the class. Accordingly, Mr. Olson has met the
28

adequacy requirement and satisfied all of the Rule 23(a) requirements for class certification for all claims except the claim that the prison’s policy Mr. Olson and others have been denied their Fourteenth Amendment right access to court.
4. Rule 23(b)(2): Common Grounds for Injunctive and Declaratory Relief In addition to meeting class certification requirements under Rule 23(a), plaintiff’s proposed class must satisfy the requirements of one of the three subsections of Rule 23(b). Because Mr. Olson only seeks certification under Rule 23(b)(2), the Court limits its consideration to whether certification under that subsection is proper. Rule 23(b)(2) covers cases where “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2); see Lemon v. Int’l Union of Operating Eng’rs, Local No. 139, AFL-CIO, 216 F.3d 577, 580-81 (7th Cir. 2000) (noting that Rule 23(b)(2) certification does not ensure personal notice or an opportunity to opt out even if some or all of the plaintiffs pray for monetary damages). The key to the (b)(2) class is “the indivisible nature of the injunctive or declaratory remedy warranted—the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.” Wal-Mart, 131 S.Ct. at 2557 (citing Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U.L.Rev. 97, 132 (2009)). In other words, Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class. Wal-Mart, 131 S.Ct. at 2557. It does not authorize class certification when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant. Id.
29

In the present case, final injunctive relief or corresponding declaratory relief in relation to TCJ’s procedures, if ultimately granted, would be appropriate respecting the class as a whole. The appropriateness of granting the relief requested will be based on a common issue that is central to the litigation for all of the proposed class members—that is, whether Sheriff Brown has a policy or practice of failing to appropriately handle inmate grievances, opening legal mail outside of the inmates’ presence, and not providing reasonable access to the law library to inmates proceeding pro se in pending cases. The resolution of each class member’s claim will hinge on Defendant’s standardized conduct—conduct which can be enjoined or declared unlawful only as to all of the class members or as to none of them. Because a single injunction or declaratory judgment would provide relief to each member of the class, class certification is appropriate under Rule 23(b)(2).
5. Conclusion and Class Certification Because Mr. Olson has demonstrated that certification is appropriate pursuant to Federal Rule of Civil Procedure 23(a) and (b)(2), the Court ORDERS that this case be certified as a class action. The Court certifies a class comprised of any and all persons currently confined, or who will in the future be confined, in the Tippecanoe County Jail. The class may pursue claims for injunctive and declaratory relief for alleged violations of the Indiana Administrative Code regulations: inadequate grievance procedure (210 I.A.C. 3-1-15(h)); inadequate law library access (210 I.A.C. 3-1-15(a)); opening of mail from the courts outside of the inmates’ presence (210 I.A.C. 3-1-16(c)); and opening of mail from legal organizations and attorneys outside of the inmates’ presence (210 I.A.C. 3-1-16(c)); and for alleged violations of the First Amendment’s protections for free speech, under to 42 U.S.C. § 1983. The Court also certifies a subclass
30

comprised of only those members of the jail-wide class who are currently pursuing, or may in the future pursue, non-frivolous legal claims in state of federal court. This subclass may pursue injunctive and declaratory relief for alleged violations of the Fourteenth Amendment’s protections of the right of access to court, under 42 U.S.C. § 1983, relative only to the prison’s handling of mail from attorneys. Because certification of the class was delayed through the course of an appeal and for some time thereafter, either party may petition the Court for modification of the class definition if subsequent evidence suggests that the class as defined is inappropriate. Fed. R. Civ. P. 23(c)(1)(C). C. Appointment Of Class Counsel
Rule 23 requires that a court certifying a class also appoint class counsel. Fed. R. Civ. P. 23(c)(1)(B), (g). Class counsel must fairly and adequately represent the interests of the class. Fed. R. Civ. P. 23(a)(4). In appointing class counsel, the court must consider the following: “the work counsel has done in identifying or investigating potential claims in the action; counsel’s experience in handling class actions, other complex litigation, and the types of claims asserted in the action; counsel’s knowledge of the applicable law; and the resources that counsel will commit to representing the class.” Fed. R. Civ. P. 23(g)(1)(A). The court may also consider “any other matter pertinent to counsel’s ability to fairly and adequately represent the interests of the class.” Fed. R. Civ. P. 23(g)(1)(B).
As previously detailed, the Court finds that Attorneys Gavin Rose and Kenneth Falk will fairly and adequately represent the interests of the class. Mr. Rose and Mr. Falk have extensively reviewed and investigated the potential claims in this case, have much experience in handling class action litigation, have knowledge of the law relative to the claims asserted, and
31

have the resources that are necessary to represent the class. Therefore, in compliance with Rule 23(g)(1), Mr. Rose and Mr. Falk will be appointed class counsel.
III. CONCLUSION Because Mr. Olson has demonstrated that certification is appropriate pursuant to Fed. R. Civ. P. 23(a) and (b)(2), the Court GRANTS in part and DENYS in part Mr. Olson’s Motion to Certify Class; ORDERS that this case be certified as a class action with the class and subclass defined as stated in Section II.B.5, supra; APPOINTS Gavin Rose and Kenneth Falk as class counsel; and, DIRECTS class counsel to provide notice of this certification to each individual member of the class who can be identified through reasonable effort. Finally, because Mr. Olson’s standing in this case is contingent on class certification, the Court DISMISSES AS MOOT any claims not certified for class treatment. SO ORDERED. ENTERED: July 25, 2012
/s/ JON E. DEGUILIO Judge United States District Court
32

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA HAMMOND DIVISION AT LAFAYETTE

JEFFREY MARK OLSON, on his own )

behalf and on behalf of a class of those )

similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

TRACY BROWN, in his official capacity )

as Sheriff of Tippecanoe County,

)

)

Defendant.

)

No. 4:09-cv-00006-AS-PRC

MEMORANDUM OPINION AND ORDER

This matter is before the Court on the Motion for Judgment on the Pleadings (Doc. No. 19)

filed by Defendant Tracy Brown (“Sheriff Brown”) on March 13, 2009, pursuant to the Federal Rules

of Civil Procedure, Rule 12(c), against Plaintiff Jeffrey Mark Olson (“Mr. Olson” or “Plaintiff”) who

is suing on his own behalf and on behalf of a class of those similarly situated.

On March 18, 2009, the Court heard oral argument in South Bend on the pending Motion for

Class Certification under Fed. R. Civ. Pro. 23(a) and (b)(2) (Doc. No. 2). At the time of the hearing,

the Motion for Judgment on the Pleadings filed on March 13, 2009 (Doc. No. 19) was not yet ripe.

The parties were informed that a ruling on the latter motion (once ripe) would precede consideration

of the class certification, and no objection was made. Because the issues raised in both motions

overlap, the Court considers the arguments made in the briefs for both motions, and the arguments

made during the March 18 hearing, to the extent that they are relevant here. For the reasons that

follow, Sheriff Brown’s Motion for Judgment on the Pleadings is GRANTED.

1

I. Procedural and Factual Background
On January 2, 2009, Mr. Olson filed a “class action complaint for declaratory and injunctive
relief” to enjoin the practices of the Tippecanoe County Jail. Mr. Olson sues on his behalf and on
the behalf of “any and all persons currently confined, or who will in the future be confined, in the
Tippecanoe County Jail.” Class Action Complaint, ¶ 6. On January 20, 2009, Sheriff Brown
removed the case from Tippecanoe County State Court to this Court based upon federal question
jurisdiction.
By way of background, Mr. Olson was sentenced on or about November 1, 2003, to ten years
in the Indiana Department of Corrections. While pending transfer to a different facility, he was held
at the Tippecanoe County Jail (“the Jail”) beginning on August 29, 2008. While at the Jail,
numerous violations of law against him allegedly occurred primarily in September and October
2008, including the following claims:
(1) improper handling of legal mail, which was opened outside the presence of the addressee/inmate; (2) providing unreasonable access to the law library; (3) improper handling/delayed response (or no response) to inmate grievances; (4) providing incorrect prescription medications to inmates; (5) providing dirty eating utensils and cups to inmates who are without a means to sanitize their own utensils; (6) providing a law library that is out-of-date; (7) charging excessive charges for medical visits and medications; and, (8) charging excessive commissary prices, including excessive prices for pre-paid phone cards.
See Class Action Complaint, pp. 3-11. On November 7, 2008, Mr. Olson filed a final grievance with
the Jail stating:
On October 25, 2008, I submitted a grievance due to jail personnel not responding to any prior grievance. Again, personnel have ignored my grievance and failed to reply. Please reply to my 10-25-08 grievance. If you fail, I will not file any more
2

grievances, I will proceed to the United States District Court. Please accept this as my appeal of my October 25, 2008, grievance. See Doc. No. 1-2, Class Action Complaint, p. 8. Almost 2 months later, on January 2, 2009, Plaintiff filed his Class Action Complaint and a Motion for Class Certification while he was incarcerated in the Jail. On January 15, 2009, after being incarcerated at the Jail for over 4 months (approximately 139 days), yet only 2 weeks after filing the Class Action Complaint, Mr. Olson was transferred from the Jail directly to the Indiana Department of Correction. See Doc. No. 16-2, Olson Affidavit, ¶ 1. The average length of stay of inmates in the Jail during the relevant time frame is 139 days. Of those inmates incarcerated in the Jail on February 20, 2009, 128 inmates were incarcerated in the Jail for less than 30 days; 119 were incarcerated in the Jail for between 30 and 90 days; 130 were incarcerated in the Jail for between 90 and 180 days; 121 were incarcerated in the Jail for between 180 and 365 days; and 41 were incarcerated in the Jail for more than 365 days. Defendant Sheriff Brown argues that judgment under Rule 12(c) is proper because: (1) the Plaintiff has no private right of action to enforce jail standards set forth in 210 Ind. Admin. Code 3-1-15 (concerning jail law libraries and grievance procedures) and set forth in 210 Ind. Admin. Code 3-1-16 (concerning handling of inmate mail from attorneys and the courts) because these standards are enforced by the Indiana Department of Corrections; (2) there is no constitutional privilege with respect to mail coming from the courts since they are public documents and implicate no privacy right; and, mail from attorneys where no attorneyclient privilege has been claimed is not constitutionally protected; and/or (3) Mr. Olson’s claims for injunctive relief are moot because he is no longer incarcerated at the Tippecanoe County Jail, and was transferred to the Indiana Department of Corrections on January
3

15, 2009. II. Standard of Review
Under Federal Rule of Civil Procedure 12(c), a party may move for judgment on the pleadings “[a]fter the pleadings are closed but within such time as not to delay the trial.” A Rule 12(c) motion for judgment on the pleadings is reviewed “under the same standards as a motion to dismiss under 12(b). Flenner v. Sheahan, 107 F.3d 459, 461 (7th Cir. 1997); see also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556-70 (2007) (to survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.”)); Limestone Development Corp. v. Village of Lemont, Ill., 520 F.3d 797, 803 (7th Cir. 2008) (reasoning that a complaint must allege facts to state a claim to relief that is plausible on its face) (citing Bell Atl. Corp., 550 U.S. at 544). A motion for judgment on the pleadings is properly granted where, accepting all “well-pleaded allegations in the complaint as true” and drawing all “reasonable inferences in favor of the plaintiff,” the moving party is entitled to judgment as a matter of law. Forseth v. Vill. of Sussex, 199 F.3d 363, 368 (7th Cir. 2000).
For purposes of Rule 12(c), pleadings include the complaint, the answer, and any written instruments attached as exhibits. See Fed. R. Civ. P. 10(c); Northern Indiana Gun & Outdoor Shows, Inc. v. City of South Bend, 163 F.3d 449, 452-53 (7th Cir. 1998) (concluding that the broader interpretation of “written instrument” comports with the generous nature in which we view pleadings, and therefore “written instrument,” as used in Rule 10(c), includes documents such as affidavits) (citing Schnell v. City of Chicago, 407 F.2d 1084, 1085 (7th Cir. 1969), overruled on other grounds by City of Kenosha v. Bruno, 412 U.S. 507 (1973)). But see Rose v. Bartle, 871 F.2d
4

331, 339-40 n. 3 (3d Cir. 1989) (concluding that affidavits are not written instruments). Rule 10(c)
provides that “[a] copy of any written instrument which is an exhibit to a pleading is a part thereof
for all purposes.” McCready v. eBay, Inc., 453 F.3d 882, 891 (7th Cir.2006). From this rule, the
Seventh Circuit has concluded “documents attached to a motion to dismiss are considered part of
the pleadings if they are referred to in the plaintiff’s complaint and are central to his claim.” Id.
(citations omitted). Based on the generous nature in which pleadings are viewed, the Court considers
for purposes of this ruling, the stipulation (Doc. No. 18) and affidavits submitted by Plaintiff and
similarly situated inmates attesting to the alleged violations of their rights, because these documents
are part of the pleadings where they form the basis of the Complaint and are central to the claims
made therein.
III. Discussion The Court begins its analysis where it will soon end— on the issue of whether Mr. Olson’s claims are moot, and the effect thereof.1 Mr. Olson admits that he is no longer an inmate at the
Tippecanoe County Jail, but relies on the relation-back doctrine discussed in Gerstein v. Pugh, 420
U.S. 103, 111 n. 11 (1975), for his position that the class action survives and is not rendered moot,
because he filed the Complaint and requested class certification prior to his transfer from the Jail.
See Doc. Nos. 12, 28. While Mr. Olson is correct that inherently transitory claims may avoid
1 Mr. Olson’s standing to initially sue is uncontested. Mr. Olson satisfied each of the Article III requirements for standing to sue by alleging an actual “injury in fact” that is concrete and particularized and is fairly traceable to the challenged action of the defendant and likely to be redressed by a favorable decision. Arreola v. Godinez, 546 F.3d 788, 794-95 (7th Cir. 2008) (stating that “it is best to confine the term ‘standing’ to the Article III inquiry and thus to keep it separate from the plaintiff’s entitlement to relief or [the plaintiff’s] ability to satisfy the Rule 23 criteria.”) (citing Payton v. County of Kane, 308 F.3d 673, 676 (7th Cir. 2002)). Mr. Olson had standing when he filed the Complaint seeking injunctive relief where he was incarcerated in the Jail experiencing the alleged unlawful actions of the defendant. 5

dismissal as a result of mootness, see infra, he is incorrect in classifying his case as one that meets an exception to the mootness doctrine.
Because Mr. Olson filed his Complaint while he was in the Jail, this case is not moot on arrival. See e.g., Holstein v. City of Chicago, 29 F.3d 1145, 1147 (7th Cir.1994) (noting that the named plaintiff, who did not move for class certification prior to the expiration of his individual claims, “cannot avail himself of the class action exception to the mootness doctrine.”); Holmes v. Fisher, 854 F.2d 229, 232 (7th Cir. 1988) (finding that the case was “dead on arrival, moot the day the complaint was filed . . . there was never a case or controversy within the meaning of Art. III of the Constitution” because the plaintiff did not file his suit until after he was arrested and after he received the hearing which he contended arrested persons were entitled). Instead, Mr. Olson’s case became moot upon his transfer from the Jail on January 15, 2009— after he filed the Complaint and request for certification on January 2, 2009, but before the class could be certified.
Under Sosna v. Iowa, 419 U.S. 393 (1975) and United States Parole Commission v. Geraghty, 445 U.S. 388 (1980), the mootness of a plaintiff’s personal claim did not prevent him from serving as the representative of a class. In Sosna, however, the class was certified before the representative’s case became moot, and the Court reasoned that after certification the class itself was the plaintiff. Geraghty, which was specifically limited to the appeal of the denial of the class action motion, held that when the district court denies the plaintiff’s motion to certify a class, and the plaintiff appeals from the denial, if his appeal is pending when his substantive claim evaporates, then the appeal is not moot. See also Weismueller v. Kosobucki, 513 F.3d 784, 786 (7th Cir. 2008) (citing Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 335-37 (1980); Geraghty, 445 U.S. at 404)). This is so “because unless and until the appellate court affirms the denial of the motion to
6

certify a class, there may be people other than the plaintiff with a legally protected interest in the suit– namely the unnamed members of the class.” Weismueller, 513 F.3d at 786.
While Mr. Olson did move for class certification prior to the evaporation of his personal stake, he cannot claim the benefit of this exception to the mootness doctrine because this Court did not certify the class in the short time between the filing of his Complaint and request for class certification, and his subsequent transfer from the Jail— a mere thirteen days. The requirement that Mr. Olson’s case be dismissed under these circumstances has been made clear by the Seventh Circuit Court of Appeals. Weismueller, 513 F.3d at 786 (“If on the other hand, the named plaintiff’s claim becomes moot before the class is certified, the suit must be dismissed because no one besides the plaintiff has a legally protected interest in the litigation.”) (citing Board of School Commissioners v. Jacobs, 420 U.S. 128, 130 (1975) (per curiam) (holding that “Because the class action was never properly certified nor the class properly identified by the District Court, the judgment of the Court of Appeals is vacated and the case is remanded . . .to vacate [the District Court’s] judgment and to dismiss the complaint”); Bertrand ex rel. Bertrand v. Maram, 495 F.3d 452, 456 (7th Cir. 2007) (stating that “if the would-be representative’s claim becomes moot before certification, then the case must be dismissed)).
However, as argued by Mr. Olson, he may avoid dismissal because of mootness, if he is able to demonstrate that his claim on the merits, while no longer live, is “capable of repetition, yet evading review.” Holstein v. City of Chicago, 29 F.3d 1145, 1147 (7th Cir. 1994). To do so, Mr. Olson must prove that:
1) his claim is “so inherently transitory that the trial court [did] not have enough time to rule on a motion for class certification before the proposed representative’s individual interest expire[d],” County of Riverside v. McLaughlin, 500 U.S. 44, 52
7

(1991) (citations omitted); and 2) he will again be subject to the alleged illegality, City of Los Angeles v. Lyons, 461 U.S. 95, 110 (1983). See Robinson v. City of Chicago, 868 F.2d 959, 967 (7th Cir.1989). Holstein, 29 F.3d at 1147; see also Franks v. Bowman Transportation Company, 424 U.S. 747, 756 n. 8 (1976) (“Thus, the ‘capable of repetition, yet evading review’ dimension of Sosna must be understood in the context of mootness as one of the policy rules often invoked by the Court ‘to avoid passing prematurely on constitutional questions. Because (such) rules operate in ‘cases confessedly within (the Court’s) jurisdiction’ . . . they find their source in policy, rather than purely constitutional, considerations.”) (citations omitted). The United States Supreme Court has also held that when a class action is sought, the mooting of the plaintiff’s individual claims for relief does not moot the case if, the plaintiff’s individual claims are inherently transitory. In Gerstein, 420 U.S. at 103, the named plaintiffs filed a class action challenging pretrial detention conditions. The Court assumed that the named plaintiffs were no longer awaiting trial at the time the trial court certified the class of pretrial detainees. Id. at 111 n. 11. In addition, there was no indication that the named plaintiffs might again be subject to pretrial detention. Id. Nevertheless, the Court held that the case was not moot: This case belongs, however, to that narrow class of cases in which the termination of a class representative’s claim does not moot the claims of the unnamed members of the class. See Sosna v. Iowa, 419 U.S. 393 (1975). Pretrial detention is by nature temporary, and it is most unlikely that any given individual could have his constitutional claim decided on appeal before he is either released or convicted . . . This claim, in short, is one that is distinctly ‘capable of repetition, yet evading review’. . . It is by no means certain that any given individual, named as plaintiff, would be in pretrial custody long enough for a district judge to certify the class . . . Gerstein, 420 U.S. at 111, n. 11. Similarly, in County of Riverside v. McLaughlin, 500 U.S. 44 (1991), a class action was
8

brought by arrestees challenging the manner in which the defendant county provided probable cause determinations to persons who had been arrested without a warrant. Id. at 47. At the time the suit was filed, the named plaintiffs were incarcerated. Id. at 51. However, by the time the class was certified, their individual claims were moot. Id. at 51-52. The Court found that the case itself was not moot and that the class was properly certified:
That the case 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.”. . . In such cases, the “relation back” doctrine is properly invoked to preserve the merits of the case for judicial resolution. McLaughlin, 500 U.S. at 52. Regarding the transitory nature of the claim, Mr. Olson was incarcerated for over four months, and filed his last Jail grievance on November 7 requesting a response to his October 25 grievance. Thereafter, Mr. Olson waited nearly 2 months (56 days) to file his class action complaint in federal court. There is no evidence that after not receiving grievance responses, Mr. Olson was kept from accessing the Court. Moreover, based on the average length of incarceration, Mr. Olson is among the approximate 54% of the inmate population that is incarcerated more than 90 days in the Jail. In fact, approximately 30% of the inmate population is incarcerated in the Jail for more than half a year. Further, Mr. Olson’s situation is one unlike those cases where a court normally will not have even enough time to rule on a motion for class certification before the proposed representative’s individual interest expires, such as a challenge presented to pretrial detention, see Gerstein, 420 U.S. 103, or probable cause determinations for those recently arrested, see McLaughlin, 500 U.S. 44, or intake strip searches after arrests, see May v. Frisbie, 2009 WL 1148223 (S.D.Ind. Apr. 28, 2009).
9

Here, Mr. Olson, like over half the inmates in the Jail, was incarcerated for over 3 months. Based on these facts, this Court cannot say that Mr. Olson’s claims are so inherently transitory that he can evade the mootness doctrine. See Banks v. NCAA, 977 F.2d 1081, 1086 (7th Cir. 1992) (reasoning that had plaintiff filed his complaint shortly after discovering the alleged conduct, and still been unable to obtain class certification, he might have been able to make an argument that the claim was transitory); Trotter v. Lincar, 748 F.2d 1177, 1184-85 (7th Cir. 1984) (rejecting a claim that 70 days provided insufficient time to obtain a ruling on a motion for class certification).
Although this is enough to dismiss Mr. Olson’s complaint, the Court also finds that it is not likely that Mr. Olson will be subject to the Jail’s procedures in the future. See Holmes v. Fisher, 854 F.2d 229, 232 (7th Cir. 1988) (finding that the “capable of repetition but evading review” doctrine applies only when repetition is likely to embroil the same parties to the dispute) (citations omitted). The mere physical or theoretical possibility of Mr. Olson being incarcerated at the Jail and suffering the alleged wrongful acts of the defendants is insufficient to satisfy this prong. Holstein, 29 F.3d at 1148 (citing Jones v. Sullivan, 938 F.2d 801, 806 (7th Cir.1991)). Instead, there must be a “reasonable expectation” or a “demonstrable probability” that the same controversy will recur involving the same parties. Id. (citing Jones, 938 F.2d at 807) (quoting Murphy v. Hunt, 455 U.S. 478, 482 (1982)). Mr. Olson cannot make such a showing.
Mr. Olson’s case cannot be classified as transitory or capable of repetition but evading review— certainly a given inmate at the Jail, named as plaintiff, could be, and in fact has been most recently, incarcerated long enough for a district judge to certify a class. See Arreola v. Godinez, 546 F.3d 788, 799 (7th Cir. 2008) (“[W]e cannot conclude that it would be impossible for a more suitable representative of a Rule 23(b)(2) class to emerge. This also means that, contrary to [the plaintiff’s]
10

arguments, this case is not a good candidate for application of the ‘capable of repetition, yet evading review’ concept.”) (citation omitted). As a result, Mr. Olson’s claim is moot.
IV. Conclusion For the reasons stated herein, the Court GRANTS Defendant Sheriff Brown’s Motion For Judgment on the Pleadings (Docket No. 19), as this case is deemed moot and is dismissed without prejudice. Each party to bear its own costs. SO ORDERED. DATED: June 22, 2009
/s/ ALLEN SHARP ALLEN SHARP, JUDGE UNITED STATES DISTRICT COURT
11

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA HAMMOND DIVISION AT LAFAYETTE

JEFFREY MARK OLSON, on his own behalf )

and on behalf of a class of those similarly situated, )

)

Plaintiffs,

)

)

v.

)

)

TRACY BROWN, in his official capacity as

)

Sheriff of Tippecanoe County,

)

)

Defendant.

)

Case No. 4:09-CV-6 JD

OPINION AND ORDER

This matter is before the Court on a Motion for Judgment on the Pleadings filed by the

Defendant Tracy Brown, Sheriff of Tippecanoe County. Sheriff Brown originally filed this

motion in March 2009, see DE 19, and Judge Allen Sharp granted the motion in a June 22, 2009

Memorandum Opinion and Order, holding that the case was moot because the putative class

representative, Jeffrey Mark Olson, was no longer an inmate. The Seventh Circuit subsequently

reversed that decision in Olson v. Brown, 594 F.3d 577, 584 (7th Cir. 2010),1 and this case was

later reassigned to the undersigned. The parties submitted new briefs on this motion at the

Court’s request. See DE 61, 62.

Sheriff Brown asked the Court to rule on this motion before ruling on the Motion for

Class Certification, while Mr. Olson wanted it the other way around (or simultaneous rulings).

In its recent ruling granting the motion to certify the class, the Court noted that it

has resolved to determ ine, first, whether class certificati on is proper, and second, whether a judgment on the pleadings is proper, consistent with the directives of the

1The motion was characterized on appeal as a motion to dismiss, Olson, 594 F.3d at 584, but the parties’ supplemental briefs confirm that the motion is in fact one for judgment on the pleadings.

United States Suprem e Court and the Seventh Circuit. See Eisen v. Carlisle and Jacquelin, 417 U.S. 156, 177 (1974); Thomas v. City of Peoria, 580 F.3d 633, 635 (7th Cir. 2009) (“First ruling on the merits of the federal claims, and then denying class certification on the basis of t hat ruling, puts the cart before the horse.”) (collecting cases). Em ploying this proc ess fur ther com ports with the Seventh Circuit’s conclusion that “this case would be moot if Olson had brought his claims individually . . . [because he] sought injunctive relief and is no longer subject to the conditions that formed the basis of his complaint.” Olson v. Brown, 594 F.3d 577, 580 (7th Cir. 2010). “If the district court certifies the class, the case can proceed to the merits for the certified class of plaintiffs.” Id. at 584.
See DE 69 at 1–2. Having resolved the motion for class certification, the Court now turns to the
motion for judgment on the pleadings.
I. BACKGROUND
On January 2, 2009, Mr. Olson filed a “verified class action complaint for declaratory
and injunctive relief” pursuant to 42 U.S.C. § 1983 and Indiana law, against Sheriff Brown in his
official capacity, seeking to enjoin the practices of the Tippecanoe County Jail. See DE 1. Mr.
Olson sued on his behalf2 and on behalf of “any and all persons currently confined, or who will
in the future be confined, in the Tippecanoe County Jail,” see DE 1 at ¶ 6, although this Court
found it appropriate to certify a more limited subclass of prisoners for some claims. The
complaint alleges four areas in which the jail is violating the Indiana county jail standards
promulgated by the Indiana Department of Corrections pursuant to Indiana Code § 11-12-4-2:
(1) inadequate grievance procedures in violation 210 I.A.C. 3-1-15(h); (2) inadequate law library
2Mr. Olson’s standing to initially sue is uncontested. Mr. Olson satisfied each of the Article III requirements for standing to sue by alleging an actual “injury in fact” that is concrete and particularized and is fairly traceable to the challenged action of the defendant and likely to be redressed by a favorable decision. Arreola v. Godinez, 546 F.3d 788, 794-95 (7th Cir. 2008) (stating that “it is best to confine the term ‘standing’ to the Article III inquiry and thus to keep it separate from the plaintiff’s entitlement to relief or [the plaintiff’s] ability to satisfy the Rule 23 criteria.”). Mr. Olson had standing when he filed the complaint seeking injunctive relief where he was incarcerated in TCJ experiencing the alleged unlawful actions of the defendant.
2

access in violation of 210 I.A.C. 3-1-15(a); (3) opening of mail from the courts outside of an inmate’s presence in violation of 210 I.A.C. 3-1-16(c); and (4) opening of mail from legal organizations and attorneys outside of an inmate’s presence also in violation of 210 I.A.C. 3-116(c). See DE 60 at 2-3. The complaint also alleges that the handling of court and legal mail violates the First and Fourteenth Amendments to the United States Constitution. On January 20, 2009, Sheriff Brown removed the case from Tippecanoe County State Court to this Court based upon federal question jurisdiction and supplemental jurisdiction. See DE 4.
By way of background, Mr. Olson was sentenced on or about November 1, 2003, to ten years in the Indiana Department of Corrections. While pending transfer to a different facility, he was held at the Tippecanoe County Jail from August 29, 2008 to January 15, 2009.3 See DE 60 at 2. While incarcerated at the jail, he received mail correspondence both from various courts and attorneys which was opened by jail staff outside of his presence, even though the outside of each envelope was marked either with the return address of a court or with the phrase “legal mail.” See DE 1 at ¶¶ 14, 16, 18-19. Mr. Olson submitted grievances to jail staff following incidences occurring on September 8 and October 17, 2008, in which envelopes from court were opened outside of his presence that contained documents involving lawsuits in which Mr. Olson was representing himself. See DE 1 at ¶¶ 15, 17; DE 1-2 at p. 1, 3. When the jail staff did not respond to either grievance, Mr. Olson filed grievances concerning the failure to respond and appealed the original grievances. See DE 1 at ¶¶ 15, 17; DE 1-2 at p. 2, 4. The jail never
3Although Mr. Olson was transferred from jail, the Seventh Circuit has determined that the inherently transitory exception to the mootness doctrine prevented dismissal of this case, and remanded the case for consideration of the pending motion for class certification. Olson v. Brown, 594 F.3d 577 (7th Cir. 2010). Having certified the class, the Court holds that Mr. Olson’s transfer does not moot the class claims.
3

responded to Mr. Olson’s grievances. Id. On September 18, 2008, Mr. Olson requested that he be permitted to visit the law library
in order to conduct legal research concerning pending legal proceedings for which he was representing himself . See DE 1 at ¶ 20. Mr. Olson’s request was denied, and despite subsequent requests to visit the law library, he was never permitted to do so. Id. On September 18, Mr. Olson submitted a grievance concerning his not being given access to the law library. See DE 1 at ¶ 21; DE 1-2 at p. 5]. The jail staff did not respond, and Mr. Olson submitted a grievance concerning the failure to respond and he appealed the original grievance [DE 1 at ¶ 21; DE 1-2 at p. 6]. No response was given. Id.
According to the complaint, Mr. Olson submitted at least twenty-one grievances and grievance appeals to the jail staff between his arrival at the jail on August 29, 2008, and the filing of the complaint. See DE 1 at ¶ 22. The jail never responded to any of them. Id. Mr. Olson filed grievances over the conduct which he opposes,4 and maintained a journal recounting the precise language of each grievance and each grievance appeal. See DE 1 at ¶ 12. Moreover, on October 25, 2008, Mr. Olson submitted a grievance to the jail staff concerning the failure to respond to grievances. See DE 1 at ¶ 23; DE 1-2 at p. 7. The jail staff did not respond to this grievance, and on November 7, 2008, Mr. Olson submitted an appeal of the grievance that received no response. See DE 1 at ¶ 23; DE 8. Once again, the jail did not respond to the grievance. Id.
The repeated lack of response to grievances and appealed grievances occurred, despite
4Sheriff Brown asserts that there is no indication that Mr. Olson filed a grievance specifically complaining that mail sent to him from an attorney was opened outside of his presence [DE 61-1], although Mr. Olson did complain that legal mail procedures where not being complied with by TCJ.
4

the fact that the jail employs a grievance policy to address inmate concerns [DE 1 at ¶ 13]. Once an inmate files a grievance, the jail is responsible for responding to the grievance within seven days. Id. If the inmate does not agree with the decision, he or she may appeal the decision. Id. The jail then has fifteen days to respond to the appeal. Id. According to the complaint, the failure to respond to grievances, the denial of law library access and the opening of legal mail were not isolated problems unique to Mr. Olson but emblematic of policies or practices of the county jail that violate the Indiana jail standards.
II. DISCUSSION A. Standard of Review
The Court reviews a motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c), the same standard that applies to motions to dismiss under Rule 12(b)(6). See R.J. Corman Derailment Serv., LLC v. Int’l Union of Operating Eng’rs, 335 F.3d 643, 647 (7th Cir. 2003). The Court will only grant a Rule 12(c) motion when, after accepting facts alleged in the complaint as true and viewing them in the light most favorable to the non-moving party, “it appears beyond a doubt that the plaintiff cannot prove any facts to support a claim for relief.” Guise v. BWM Mortg., LLC, 377 F.3d 795, 798 (7th Cir. 2004). There are, however, some limits to the factual allegations the Court may accept as true: there must be sufficient facts plead to provide notice to the defendants of the claims; the facts must not be “so sketchy and implausible that they fail to provide sufficient notice to defendants of the plaintiff’s claim”; and the Court “should not accept as adequate abstract recitations of the elements of a cause of action or conclusory legal statements.” Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009) (outlining pleading requirements after Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009)).
5

B. Federal Constitutional Claims In its previous order certifying this case as a class action, the Court outlined the federal
legal theories at play in this case and certified a class action for claims that the prison mailhandling policy violates the free speech rights of the entire class (with respect to all “legal mail” including court mail) and the right to access the courts of a subclass comprised of only those prisoners who have now or may in the future have non-frivolous legal claims (solely with respect to attorney mail). Regarding the First Amendment claim, “[t]he Supreme Court has recognized that prisoners do have protected First Amendment interests in both sending and receiving mail.” Rowe v. Shake, 196 F.3d 778, 782 (7th Cir. 1999) (citing Thornburgh v. Abott, 490 U.S. 401 (1989) and Turner v. Safley, 482 U.S. 78 (1987)). This is true for both legal and non-legal mail. Id. These rights, however, are subject to curtailments “reasonably related to legitimate penological interests.” Id. (citing Thornburgh, 490 U.S. at 409). In the case of non-legal mail, it is firmly established that “prison security ‘is a sufficient important governmental interest to justify limitations on a prisoner’s first amendment rights,’” and that prison officials may therefore inspect incoming or outgoing non-legal mail for contraband. Id. (quoting Gaines v. Lane, 790 F.2d 1299, 1304 (7th Cir. 1986).
While Courts have also routinely approved of prison officials opening even prisoners’ legal mail, they have been more solicitous of protections for such mail, indicating that the prisoner should be present when the letter is opened to ensure that a confidential letter is not read by the prison staff. See Wolff v. McDonnell, 418 U.S. 570, 576–77 (1974); Guarjardo-Palma v. Martinson, 622 F.3d 801, 804 (7th Cir. 2010) (collecting cases). Courts do not, however, always agree on what rights drive the heightened concern. Most have acknowledged that reading confidential mail from an prisoner’s attorney at least potentially violates the prisoner’s right to
6

meaningful access to the courts because “‘the opportunity to communicate privately with an attorney is an important part of that meaningful access.’” Guarjardo-Palma, 622 F.3d at 802 (quoting Dreher v. Sielaff, 636 F.2d 1141, 1143 (7th Cir. 1980)).
Some courts have also located the special protections for legal mail in the prisoner’s right to free speech. See, e.g., Jones v. Brown, 461 F.3d 353, 359 (3d. Cir. 2006) (“A state pattern and practice, or, as is the case here, explicit policy, of opening legal mail outside the presence of the addressee inmate interferes with protected communications, strips those protected communications of their confidentiality, and accordingly impinges upon the inmates right to freedom of speech.”). In Denius v. Dunlap, 209 F.3d 944 (7th Cir. 2000), the Seventh Circuit also described “the right to hire and consult an attorney,” in terms of the First Amendment’s protection for freedom of speech: “If by compelling an individual to reveal information that he would rather keep confidential the state chills the individual’s ability to engage in protected speech, the state has infringed the individual’s First Amendment right in the protected speech, unless it provides a sufficient justification for the required disclosure.” Id. at 953–54. Denius, however, involved the rights of a teacher at a state-run program for high school dropouts, id. at 948, not inmates in a county jail, so it does not answer the question of whether heightened free speech protections for attorney-client communications necessitate greater restrictions on prisons’ ability to inspect legal mail.
In Guarjardo-Palma, the Seventh Circuit reasoned the right of access to the courts, not the right to free speech, was the appropriate basis for heightened protections for attorney-client communication in the prison context because “the purpose of confidential communication with one’s lawyer is to win a case rather than to enrich the marketplace of ideas.” 622 F.3d at 802.The right of access to the courts, however, brings with it additional considerations and hurdles that do
7

not burden the right to free speech. In the related context of adequate prison libraries and legal assistance programs, the Supreme Court held in Lewis v. Casey, 518 U.S. 343 (1996), that “[i]nsofar as the right vindicated by [Bounds v. Smith, 430 U.S. 817 (1977),] is concerned, ‘meaningful access to the courts is the touchstone, and the inmate therefore must go one step further and demonstrate that the alleged shortcomings in [a] library or legal assistance program hindered his efforts to pursue a legal claim.” Id. at 351 (emphasis added). The Seventh Circuit has confirmed that Lewis informs mail-handling claims as well: “there must likewise by [sic] a showing of hindrance in a claim of interference with a prisoner’s communications with his lawyer.” Guarjardo-Palma, 622 F.3d at 805; see also Kaufman v. McCaughtry, 419 F.3d 678, 686 (7th Cir. 2005) (“[W]hen a prison receives a letter for an inmate that is marked with an attorney’s name and a warning that the letter is legal mail, official’s potentially violate the inmate’s rights if they open the letter outside of the inmates presence.” (emphasis added)).
To make out a claim that a prison is denying him his right of access to court and enjoin the prisons actions, therefore, a prisoner must allege that he has a non-frivolous legal claim that he wishes to pursue and that the challenged prison conduct is actually hindering that claim. Where the interference with the confidentiality of attorney-client communications is isolated, such hindrance may be difficult to prove because the “effect on prisoners’ access to justice is likely to be nil.” Guarjardo-Palma, 622 F.3d at 805. But Guarjardo-Palma also noted that “proof of a practice of reading a prisoner’s correspondence with his lawyer should ordinarily be sufficient to demonstrate hindrance.” Id. at 805. This is because a prisoner’s knowledge of such a practice (whether or not it was ever employed on his own mail) “will to a high probability reduce the candor of those communications.” Id.
Turning to the case at hand, the Court notes that the plaintiffs’ claim regarding the 8

handling of attorney-client mail is not actionable as a free speech claim, for the reasons discussed above. It is well-established that security interests permit prison officials to inspect incoming and outgoing mail from prisoners without infringing their right to free speech. Rowe, 196 F.3d at 782. Moreover, in the Seventh Circuit at least, legal mail—including confidential communications with attorneys—is not distinct from non-legal mail as far as free speech rights are concerned. See Gaurjado-Palma, 622 F.3d at 802..
As an access to court claim, however, the plaintiffs’ case fares much better. First, Mr. Olson’s complaint plainly alleges that he had a pending civil lawsuit in the Eastern District of Kentucky at the time his legal mail “from various attorneys” including the ACLU of Indiana, was allegedly opened outside of his presence and it is not unreasonable to infer from these allegations that these attorneys represented him either in then pending or potential claims (such as this one),5 such that a hindrance in his ability to communicate confidentially with his attorney could have actually injured his right to access the courts. Second, he alleges that the prison’s handling of his mail from attorneys was part of a “practice or policy of opening and reading clearly identifiable legal mail, including legal mail from the ACLU of Indiana, outside of the presence of the inmate to whom the mail is addressed.” DE 1 ¶26. Under the access to courts legal theory explained in Guarjardo-Palma, these allegations are sufficient to state a claim that, with respect to clearly marked legal mail from attorneys, the prison has a mail-handling policy that was hindering the plaintiffs’ efforts to pursue one or more non-frivolous claims at the time
5Mr. Olson does not specifically allege that the mail from the ACLU of Indiana that was opened outside of his presence related to this case, but he does suggest that the Court should make the connection on its own. The Court agrees. It is a matter of record that Mr. Olson is represented by the ACLU and it is therefore a reasonable assumption—all that is required at this stage of the proceedings—that the mail from the ACLU was in fact privileged attorney-client correspondence.
9

Mr. Olson filed his complaint. The Court will therefore deny Sheriff Brown’s motion with respect to the federal access to courts claim.
The Court is aware that this leaves Mr. Olson and the class with no remaining claim that the jail’s policy of opening court mail outside the presence of addressee’s violates the inmates’ federal constitutional rights. As the Court noted in its order of class certification, the Seventh Circuit has expressed scepticism concerning special protections for court mail in cases such as Guarjardo-Palma and Martin v. Brewer, 830 F.2d 76 (7th Cir. 1987). Mr. Olson contends, however, that in Castillo v. Cook County Mail Room Dep’t, 990 F.2d 304, 306–07 (7th Cir. 1993), the court previously held that a complaint that alleged only that jail officials had opened two letters from a federal district court and one letter from the Department of Justice stated a claim upon which relief could be granted and that “this is conclusive of the issue” of whether some court mail is entitled to special protections under the federal constitution.
Mr. Olson’s reliance on Castillo is weakened by legal developments since that case was decided. First, Castillo was decided under a previous version of 28 U.S.C. § 1915 that permitted district courts to dismiss in forma pauperis filings only when the action was “frivolous or malicious,” or, in other words, it “lack[ed] an arguable basis in law or in fact.” Castillo, 990 F.2d at 306 (quoting Neitzke v. Williams, 490 U.S. 319, 325 (1989). Under that low standard, “a complaint filed in forma pauperis which fail[ed] to state a claim under Federal Rule of Civil Procedure 12(b)(6) may nonetheless have ‘an arguable basis in law’ precluding dismissal under § 1915(d).” Id. (quoting Denton v. Hernandez, 504 U.S. 25, 31–32 (1992)). Thus, Castillo did not hold that allegations of interference with court mail state a claim, but merely that such allegations were not made frivolous by the court’s previous non-binding pronouncements. Second, Castillo was decided before the Supreme Court decided Lewis v. Casey and changed the
10

landscape for access to court claims, including claims arising from mail-handling policies, by requiring claimants to allege some hindrance to an actual or imminent case. Third, Castillo did not specify whether the plaintiff’s “arguable basis” lay in a theory of free speech or access to court—given the very low standard, it would not have been necessary—but as the Court has already explained, the Seventh Circuit has since then decided that any supplemental protection for legal mail arises from the right to access to court, not from the freedom of speech. See Guarjardo-Palma, 622 F.3d at 802. For these reasons, Castillo cannot bear the weight that Mr. Olson puts on it, and the Court must be guided by the Seventh Circuit’s more recent and fully reasoned decisions.
Finally, the Court notes that it does not reach the question of whether Mr. Olson’s complaint states a claim that the policy of opening court mail impedes his right to access to court. The Court discussed that claim in its order of class certification and concluded that class certification was not appropriate for that claim, primarily because it found that Mr. Olson was not a proper representative as his claim was not typical of the class claims because he failed to allege “hindrance”. The Court then dismissed that claim as moot because Mr. Olson was long ago transferred out of the Tippecanoe County Jail and therefore no longer has standing to seek injunctive relief on his own behalf, divorced from the class he sought to represent. C. State law claims
The plaintiffs also seek to enforce certain jail standard requirements found in the Indiana Administrative Code, specifically those addressing law library access, 210 Ind. Admin. Code § 3-1-15(a), grievance procedures, id. § 3-1-15(h), and mail handling procedures, id. § 3-1-16(c). The threshold question on these claims—and ultimately the dispositive issue—is whether the plaintiffs have a private right of action to enforce these standards.
11

The parties agree that Indiana law does not explicitly provide a private cause of action to enforce the Indiana Jail Standards that the Tippecanoe County Jail has allegedly violated. The Chapter under which the county jail standards were promulgated says nothing about private enforcement actions against counties for violations of the standards. But it is not altogether silent on the issue of remedies for failures to comply with the jail standards. Under Indiana Code § 1112-4-2, the Department of Corrections must inspect each county jail annually to determine compliance with the county jail standards. If the department provides notice of a lack of compliance, the county sheriff “may bring an action in the circuit court against the board of county commissioners or county council for appropriate mandatory or injunctive relief.” Id. § 11-12-4-2(c). If “the county is not making a good faith effort toward compliance” within six months of the notice, the department may take direct action by “petition[ing] the circuit court for an injunction prohibiting the confinement of persons in all or any part of the jail, or otherwise restricting the use of the jail” or recommending “that a grand jury be convened to tour and examine the county jail.” Id. § 11-12-4-2(b).
Under Indiana law, this comprehensive enforcement mechanism appears to prohibit the Court from finding an additional remedy in the form of an implied private cause of action. “[W]hen legislation expressly provides a particular remedy or remedies, courts should not expand the coverage of the statute to subsume other remedies.” Coons v. Kaiser, 567 N.E.2d 851, 852 (Ind. App. 1991). This is so because “[w]hen a statute limits a thing to be done in a particular mode, it includes the negative of any other mode.” Id. (quoting National R.R. Passenger Corp. v. National Ass'n of R.R. Passengers, 414 U.S. 453, 459 (1974)); see also Malone v. Becher, No. NA 01-101-C H/H, 2003 WL 22080737 (S.D. Ind., Aug. 29, 2003) (collecting cases). In this case, moreover, allowing a private cause of action could substantially
12

undermine the careful enforcement mechanism chosen by the Indiana legislature: rather than a gradual process involving all of the key institutional players responsible for overseeing county jails, a private right of action would see individual prisoners or groups of prisoners attempting to enforce their own visions of what compliance with the jail standards should look like.
The Court is not aware of any Indiana state court decisions specifically considering whether prisoners have a private cause of action to enforce the county jail standards, but every federal decision on point supports the Court’s reasoning above. First, in Malone v. Becher, No. NA 01-101-C H/H, 2003 WL 22080737 (S.D. Ind., Aug. 29, 2003), then-Southern District of Indiana Judge Hamilton rejected a class-action claim for damages based on the Clark County Jail’s alleged violations of the Indiana jail standards—in that case, provisions requiring that clean clothing be provided weekly and that each inmate have the opportunity to shower three times a week. The court looked to the Indiana Code, rather than the jail standards, for an express or implied cause of action, noting that “as a general rule, a state’s administrative regulations do not provide the source of an implied cause of action for damages against a local government.” Id. at *20. It then cited Coons for the rule that a statute’s specification of one or more remedies prohibits judicial implication of other, non-specified remedies and concluded that because the Indiana legislature had provided a specific remedy in Indiana Code § 11-12-4-2, “[n]othing in the statute suggests that the legislature intended to give inmates or anyone else a private cause of action for damages, and the court sees no basis for implying one.” Id. at *20.
Then, in Tyson v. Grant County Sheriff, No. 1:07-CV-0010, 2007 WL 1395563 (N.D. Ind., May 9, 2007), a court in this district reached a similar conclusion with respect to classaction claims seeking declaratory and injunctive relief to remedy alleged violations of several statutory provisions as well as jail standards requiring one bed for each prisoner, sanitary
13

conditions, and a reasonable opportunity for physical exercise for inmates. Judge Lozano agreed with Malone that the remedy provided in Indiana Code § 11-12-4-2 precluded an implied private cause of action. Tyson, 2007 WL 1395563 at *9.
Turning to the alleged statutory violations, the court dug deeper into Indiana case law to uncover a broader presumption against implied causes of action in the prison context. Id. at *10. Judge Lozano first discussed Blanck v. Indiana Dept. of Corrections, 829 N.E.2d 505 (Ind. 2005), in which the Indiana Supreme Court reaffirmed earlier holdings that prison disciplinary decisions by the Indiana Department of Corrections were not subject to judicial review under an implied cause of action. Id. at 510. In that case, the Indiana Supreme Court found that the Indiana legislature clearly intended to preclude judicial review when it established an exclusive means for judicial review of agency actions in the Indiana Administrative Orders and Procedures Act and then excluded Department of Correction’s decisions with respect to prisoners from judicial review. Id. Judge Lozano then followed this stream of precedent to the Indiana Court of Appeals decision in Kimrey v. Donahue, 861 N.E.2d 379 (Ind. Ct. App. 2007), where that court held that Blanck was not limited to prison disciplinary cases but rather created a presumption against judicial review of prisoner complaints generally: “We garner from the Blanck decision that trial courts lack subject matter jurisdiction over such complaints unless an explicit private right of action is afforded by statute or the allegation is made that constitutional rights are being violated.” Id. at 382.
Finally, in Kress v. CCA of Tennessee, LLC, No. 1:08-cv-00431, 2011 WL 1323680 (S.D. Ind., Apr. 13, 2011), Judge McKinney of the Southern District relied heavily on Malone and Tyson to deny a plaintiff class a private right of action for injunctive relief. In that case, the defendant was a privately run correctional facility, rather than a county jail, and the plaintiffs
14

alleged the prison conditions violated the Indiana jail standards as well as the Eighth and Fourteenth Amendments of the United States Constitution. Id. at *1. With respect to the jail standards, the plaintiffs sought to distinguish Malone, arguing that it dealt only with money damages, and Tyson, arguing that it did not apply when a sheriff had contracted out oversight of a facility to a private company. Id. at *9. The court found both distinctions inconsequential and agreed with the earlier cases that because Indiana Code § 11-12-4-2 entrusts enforcement of the jail standards to the county sheriff and Commissioner of the Department of Corrections, prisoners have no private right of action to enforce the jail standards themselves. Id.
Against this considerable array of authority, the plaintiffs advance an alternative, much more generous approach to implying a private cause of action. Quoting Bailey v. Washington Theater Co., 34 N.E.2d 17, 19 (Ind. 1941), they claim that any statute that imposes a duty for an individual’s benefit must be read to include a private cause of action unless the “statute in addition to imposing the duty provides a specific remedy for the person aggrieved by its violation and fixes the maximum amount recoverable by such aggrieved person[].” According to the plaintiffs, this principle applies equally to administrative regulations because “[p]roperly adopted administrative rules and regulations have the force and effect of law.” See DE 62 at 8 (quoting Hopkins v. Tipton County Health Dep’t, 769 N.E.2d 604, 608 (Ind. Ct. App. 2002)). Following this approach, the plaintiffs distinguish the state court decision in Blanck and Kimrey because those cases involved prisoners within the Department of Corrections who sought judicial review for violations, such as disciplinary decisions and the withholding of printed matter, that could be redressed through the department’s grievance procedure. With regard to Judge Lozano’s decision in Tyson, the plaintiffs explain that its holding is “suspect” because it “did not address the clear rules set down by the Indiana Supreme Court in Bailey,” and that the real
15

reason that the jail standards in Tyson were unenforceable was that they “rely on inherently malleable terms.”
Plaintiffs’ entire edifice is built on shaky foundations. It is quite understandable that Judge Lozano did not address the “clear rules set down by the Indiana Supreme Court in Bailey”: neither Blanck, Kimrey, nor one single case in the seventy-plus years since Bailey was decided have cited the case for its “clear rules.” Regardless, this Court has examined Bailey and finds that it cannot bear the weight that the plaintiffs put on it. That case merely held that where a statute provided a specific remedy for the person aggrieved by the violation of a statutory duty, the court could not permit a greater recovery. But the inverse—that in the absence of a specific statutory remedy for the person aggrieved a court must imply one—does not logically follow and was not suggested by the court. Moreover, even if Bailey did create a rule for statutory duties, the plaintiffs point to no authority for their contention the same rule applies to administrative regulations, contrary to the general rule that “a state’s administrative regulations do not provide the source of an implied cause of action.” See Malone, 2003 WL 22080737, at *20. The cases the plaintiffs cite stand simply for the uncontroverted proposition that regulations have the force of law and must be obeyed and do not suggest that agencies, as a general matter, have the authority to confer subject matter jurisdiction on courts by implying a private right of action.
The plaintiffs’ arguments are thus unavailing in the face of persuasive precedent from this district and the Southern District of Indiana, as well as the reasoning of the Indiana courts in Blanck and especially Kimrey. The Court agrees with Tyson, Malone, and Kress, that prisoners do not have a private cause of action to enforce the Indiana county jail standards promulgated under Indiana Code § 11-12-4-2. The state law claims must be dismissed.
16

III. CONCLUSION Accordingly, the Court concludes that the class plaintiffs’ have stated a claim that the Tippecanoe County Jail has a policy of opening mail to attorneys outside the addressee prisoner’s presence, and that this policy violates the class members’ right to access to court by hindering confidential communications with attorneys regarding non-frivolous legal claims. Under Seventh Circuit precedent, however, the plaintiffs are not entitled to relief on their claim that the jail’s legal-mail handling policy violates the class members’ freedom of speech. Further, the plaintiffs’ state law claims must be dismissed because there is no express or implied cause of action for violations of the Indiana jail standards promulgated under Indiana Code § 11-12-4-2. For these reasons, explained more fully above, the Court GRANTS IN PART AND DENIES IN PART the Defendant’s motion for judgment on the pleadings [DE 19]. SO ORDERED. ENTERED: July 25, 2012
/s/ JON E. DEGUILIO Judge United States District Court
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 Casec:aC0sa9es-e24:7002998--c2v7-20D80o0c0u6mD-PeoRncCtu:m0e0dn7ot1c:1u13m63e8n0t2F57i1ledf:iFl0ei2dle/0d4:2/02206/12/1060/20p1Pa0gaege6sPo:af1g14e9s: 14
In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2728 JEFFERY MARK OLSON, on behalf of himself and a class of those similarly situated,
Plaintiff-Appellant, v.
TRACY BROWN, in his official capacity as Sheriff of Tippecanoe County,
Defendant-Appellee.
Appeal from the United States District Court for the Northern District of Indiana, South Bend Division.
No. 4:09-CV-00006—Allen Sharp, Judge.
ARGUED NOVEMBER 10, 2009—DECIDED FEBRUARY 4, 2010
Before POSNER and FLAUM, Circuit Judges, and DERYEGHIAYAN, District Judge.
FLAUM, Circuit Judge. A putative class of plaintiffs, represented by Mark Olson, filed a complaint against
 Hon. Samuel Der-Yeghiayan, District Judge for the Northern District of Illinois, is sitting by designation.

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the Sheriff of Tippecanoe County, Tracy Brown, alleging several First Amendment violations and violations of Indiana law in the Tippecanoe County Jail. Olson filed for class certification at the same time he filed the complaint. Shortly after Olson filed the complaint and motion for class certification, the Indiana Department of Correction transferred him out of Tippecanoe County Jail. Because the transfer took place before class certification, the district court dismissed the suit as moot. Olson appeals the dismissal on the ground that this case is inherently transitory for any possible named plaintiff and therefore falls within the exception to the mootness doctrine announced in Gerstein v. Pugh, 420 U.S. 103 (1975). We find that this case fits within the exception to the mootness doctrine carved out for inherently transitory cases and therefore we reverse the district court’s dismissal.

I. Background
Tippecanoe County Jail (“TCJ”) is a temporary detention center that houses inmates awaiting trial, release on bail, or transfer to the Indiana Department of Correction, or serving sentences of less that one year. The parties stipulate that the following statistics regarding the inmate population as of February 20, 2009 represent a typical portrait of the inmate population at any given time: TCJ housed 529 inmates; 128 inmates had been incarcerated for less than 30 days; 119 inmates had been incarcerated between 30 and 90 days; 130 inmates had been incarcerated between 90 and 180 days; 121 inmates

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had been incarcerated between 180 and 365 days; 41 inmates had been incarcerated for more than 365 days; and the average length of stay for the 529 inmates was 139 days. Coincidentally, Olson was incarcerated at TCJ for exactly 139 days—from August 29, 2008 through January 15, 2009.
TCJ employs a grievance policy to address inmate concerns. Once an inmate files a grievance, the jail is responsible for responding to the grievance within seven days. If the inmate does not agree with the decision, he or she may appeal. The jail then has fifteen days to respond to the appeal. While incarcerated at TCJ, Olson filed twenty-one grievances and twenty-one grievance appeals. The jail never responded to any of them. Olson maintained a journal recounting the precise language of each grievance and each grievance appeal. Olson’s grievances included two grievances regarding jail staff opening his legal mail outside of his presence, one regarding a denial of access to the law library, and one regarding the jail’s failure to respond to grievances.
On January 2, 2009, while incarcerated at TCJ, Olson filed this complaint and a motion for class certification. Olson’s complaint set forth claims for injunctive relief against the Sheriff of Tippecanoe County with respect to four basic conditions of his confinement: (1) an inadequate grievance procedure, in violation of Indiana law; (2) inadequate access to the law library, in violation of Indiana law; (3) inspection of mail from the courts outside of his presence, in violation of the First and Fourteenth

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Amendments of the United States Constitution and Indiana law; and (4) inspection of mail from attorneys outside his presence, in violation of the First and Fourteenth Amendments of the United States Constitution and Indiana law. With the motion for class certification, Olson included affidavits of fifty-three inmates detailing their experiences with jail staff opening their legal mail outside of their presence, denying them access to the law library, and failing to respond to their grievances. Thirteen days after Olson filed this complaint and his motion for class certification, the Indiana Department of Correction transferred Olson to a new facility.
Brown removed this cause of action to federal court on January 20, 2009. On February 2, 2009, Brown filed his answer to the complaint. On March 13, 2009, Brown filed his Motion for Judgment on the Pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. The district court heard oral argument on Olson’s Motion for Class Certification on March 18, 2009, but reserved its ruling on the class certification issue pending a ruling on Brown’s Motion for Judgment on the Pleadings. On June 23, 2009, 171 days after the initial filing of this cause of action, the district court granted Brown’s motion for Judgment on the Pleadings holding that Olson’s transfer away from TCJ rendered this cause of action moot.
This appeal follows.

II. Discussion
Whether a case is moot is a question of law which we review de novo. Franzoni v. Hartmarx Corp., 300 F.3d 767,

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771 (7th Cir. 2002). A case is moot when “the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” United States Parole Commission v. Geraghty, 445 U.S. 388, 396 (1980).
It is without question that this case would be moot if Olson had brought his claims individually. Olson only sought injunctive relief and is no longer subject to the conditions that formed the basis of his complaint. Therefore, the controversy is resolved in relation to Olson. However, Olson filed for class certification while he was a party to a live controversy. This fact would generally not save a cause of action from becoming moot upon the termination of the named plaintiff’s claims prior to the certification of the class. However, timely filing for class certification can save a cause of action if it falls within the exception to the mootness doctrine announced in Gerstein v. Pugh, 420 U.S. 103 (1975). The issue before this court is whether Olson’s claim is so “inherently transitory” that it is uncertain that any member of the class would maintain a live controversy long enough for a judge to certify a class. If so, then this case is not moot for the purpose of class certification.
In Gerstein, the Court addressed the issue of class certification for Florida prisoners seeking a declaratory judgment that they had a constitutional right to a probable cause hearing for pretrial detention. Before reaching the substantive issues, the Court addressed whether it had jurisdiction to hear the claim. Faced with a situation where it was likely that none of the named plaintiffs had a live claim at the time of the class certification decision,

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the Gerstein Court specifically addressed the problem of mootness for class claims brought by pre-trial detainees. The Court found that the case was not moot, reasoning,
At the time the complaint was filed, the named respondents were members of a class of persons detained without a judicial probable cause determination, but the record does not indicate whether any of them were still in custody awaiting trial when the District Court certified the class. Such a showing ordinarily would be required to avoid mootness under Sonsa. But this case is a suitable exception to that requirement. The length of pretrial custody cannot be ascertained at the outset, and it may be ended at any time by release on recognizance, dismissal of the charges, or a guilty plea, as well as by acquittal or conviction after trial. It is by no means certain that any given individual, named as plaintiff, would be in pretrial custody long enough for a district judge to certify the class. Moreover, in this case the constant existence of a class of persons suffering the deprivation is certain. The attorney representing the named respondents is a public defender, and we can safely assume that he has other clients with a continuing live interest in this case.
420 U.S. at 111, n. 11 (internal citations omitted). A number of subsequent Supreme Court cases have reiterated and clarified the exception to the mootness doctrine announced in Gerstein. See, e.g., Swisher v. Brady, 438 U.S. 204 (1978); County of Riverside v. McLaughlin, 500 U.S. 44,

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51-52 (1991). In Swisher, the Court affirmed a district court’s decision to certify a class of juveniles involved in the juvenile court system despite the fact that the named plaintiff’s claims were moot at the time of the decision. The Court in Swisher relied on Gerstein’s predecessor, Sosna v. Iowa, 419 U.S. 393 (1975), to find:
There may be cases in which the controversy involving the named plaintiff is such that it becomes moot as to them before the district court can reasonably be expected to rule on a certification motion. In such instances, whether certification can be said to “relate back” to the filing of the complaint may depend on upon the circumstances of the particular case and especially the reality of the claim that otherwise the issue would evade review.
Swisher, 438 U.S. at 213, n. 11. In McLaughlin, the Court relied on the “inherently transitory” exception to find, “that the class was not certified until after the named plaintiffs’ claims had become moot does not deprive [the Court] of jurisdiction,” in a case challenging the denial of a prompt probable cause hearing for inmates in the county jail. 500 U.S. at 52.
Although we have yet to apply the Gerstein line of cases to a case involving jail inmates in this circuit, the Second Circuit directly addressed this issue in Zurak v. Regan, 550 F.2d 86 (2d Cir. 1977). In Zurak, a class of inmates at Rikers Island filed suit against the New York State Board of Parole alleging a violation of their due process rights regarding their conditional release. 550 F.2d at 90. All of the class members were serving a sentence of ninety-

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days or more. Id. At the time the district court certified the class, all of the named plaintiffs had already been released from Rikers Island. Id. The defendants appealed the district court’s ultimate decision on the merits by arguing that the case was moot at the time of class certification and therefore the district court acted without proper jurisdiction. Id. However, the Second Circuit found that this case was not moot at the time of class certification because it fit squarely within the exception carved out by Gerstein. Id. The court reasoned that the exception for inherently transitory claims applied in this situation because, “the relatively short periods of incarceration involved and the possibility of conditional release [created] a significant possibility that any single named plaintiff would be released prior to certification, although this possibility was less substantial than it was in Gerstein. As in Gerstein, however, the constant existence of a class of persons suffering the alleged deprivation is certain and the court may safely assume that counsel has other clients with a continuing live interest in the issues.” Id. at 91-92 (citing Gerstein v. Pugh, 410 U.S. 103, 110 n. 11 (1975)).
We agree with the Second Circuit’s determination that the Gerstein line of cases require a claim to meet two main elements for the “inherently transitory” exception to apply: (1) it is uncertain that a claim will remain live for any individual who could be named as a plaintiff long enough for a court to certify the class; and (2) there will be a constant class of persons suffering the deprivation complained of in the complaint. Gerstein, 410 U.S. at 110 n. 11; Zurak, 550 F.2d at 91-92. Olson’s claim meets both requirements.

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First, based on the stipulated facts, it is uncertain that any potential named plaintiff in the class of inmates would have a live claim long enough for a district court to certify a class. As Gerstein and Zurak both explicitly point out, the length of incarceration in a county jail generally cannot be determined at the outset and is subject to a number of unpredictable factors, thereby making it inherently transitory. While the ultimate length of confinement does affect the applicability of the “inherently transitory” exception, the essence of the exception is uncertainty about whether a claim will remain alive for any given plaintiff long enough for a district court to certify the class. In Banks v. NCAA, 977 F.2d 1081, 1086 (7th Cir. 1992) and Trotter v. Klincar, 748 F.2d 1177 (7th Cir. 1984), we specifically addressed the fact that the crux of the “inherently transitory” exception is the uncertainty about the length of time a claim will remain alive. In both cases we found that the “inherently transitory” exception did not apply because in both cases the named plaintiffs knew, from the outset, exactly how long their claims would remain alive but chose to wait to file for class certification until the claim was nearly moot or already moot. In Banks, the plaintiff knew from the outset that his claim would become moot 120 days from the onset of the controversy, but he purposefully chose to wait 112 days before filing his complaint. 977 F.2d at 1086. We relied on this intentional delay in filing to find that the plaintiff was precluded from benefitting from the “inherently transitory” exception to the mootness doctrine. Id. (“Had Banks been diligent in filing his claim shortly after discovering

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that he had failed to be selected for the draft or as a free agent, and still been unable to obtain class certification, he might have been able to make an argument for the class that he had standing for the purpose of pursing a ruling on class certification even though his own individual claim had become moot.”). In Trotter, the named plaintiff had a live claim for seventy days but never filed for class certification. The plaintiff still attempted to rely on the “inherently transitory” exception for class actions when the court ruled that his case was moot. 748 F.2d at 1184-85. Similar to our reasoning in Banks, we found that the “inherently transitory” exception was inapplicable in Trotter because the plaintiff knew that his cause of action would soon become moot but chose not to file for class certification.
Brown attempts to read Banks and Trotter to create a bright-line rule that we cannot apply the “inherently transitory” exception to a claim that has been alive beyond a given number of days. Brown argues that the “inherently transitory” exception should not apply here because Olson’s delay in filing this suit is the same as the one-hundred-and-twenty-day delay in Banks and the seventy-day delay in Trotter. This analogy is misguided in two respects. First, no such bright-line rule exists. Unlike the plaintiffs in Banks and Trotter, Olson did not know when his claim would become moot. The duration of his claim was at the discretion of the Indiana Department of Correction. An individual incarcerated in a county jail may be released for a number of reasons that he cannot anticipate. Olson’s transfer by the Indiana Department of Correction just thirteen days after he filed

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for class certification in this suit illustrates one such unpredictable occurrence that could unexpectedly moot a claim for a county jail inmate. This uncertainty is precisely what makes the “inherently transitory” exception applicable in this case. Second, because Olson was required to exhaust his administrative remedies before filing this suit, the period of time between the first possible day he could file and the day he actually filed was only fifty-two days—a significantly shorter period of time than was at issue in Banks or Trotter.
The case at bar also meets the second requirement for the inherently transitory exception—there will be a constant class of persons suffering the deprivation. Contrary to Brown’s argument, the “inherently transitory” exception to the mootness doctrine is distinct from the “capable of repetition yet evading review” exception. When the claim is inherently transitory, as it was in Gerstein and as it is in this case, the plaintiff must show that there will likely be a constant class of persons suffering the deprivation complained of in the complaint. This is different from when a plaintiff invokes the “capable of repetition yet evading review” exception, where the plaintiff must show that the claim is capable of repetition as to the named plaintiff. A close reading of United States Parole Commission v. Geraghty, 445 U.S. 388, 398-99 (1980), makes this distinction clear. In Geraghty, the Court first acknowledged that a plaintiff must have a reasonable expectation of being subjected to the offending behavior in the future to avail himself of the “capable of repetition yet evading review” exception to the mootness doctrine. However, the Court then turned

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to Gerstein and found that the “inherently transitory” exception does not require any indication that the named plaintiff would be subject to the complained-of situation in the future but just that the claim is capable of repetition. Geraghty, 445 U.S. at 398-99. Our own precedent also supports this distinction. In Banks, we treated “inherently transitory” and “capable of repetition yet evading review” as two separate lines of argument by the plaintiff for why the case was not moot. 977 F.2d at 1085-86.
Because Olson asks this court to apply the “inherently transitory” exception, not the “capable of repetition yet evading review” exception, the Supreme Court’s recent holding in Alvarez v. Smith, 588 U.S. ___, 2009 WL 4573274 (Dec. 8, 2009), is not applicable to this case. In Alvarez, the Court held that the plaintiffs could not rely on the “capable of repetition yet evading review” principle to avoid mootness because they could not show that they were likely to be subjected to the complained-of state procedures again. Alvarez, at *5-6. As discussed above, the “inherently transitory” exception does not require such a showing. Additionally, the district court in Alvarez denied the plaintiffs’ motion for class certification. The plaintiffs never appealed that decision. Significantly, this case is in a different procedural posture. Here, Olson seeks to keep the claim alive beyond his individual claim to certify the class. If the district court certifies the class, the case can proceed to the merits for the certified class of plaintiffs. The Alvarez plaintiffs, through their inaction in response to the denial of class certification, conceded that their claims should not extend beyond

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the life of their individual claims. The difference in procedural postures of the two cases makes Alvarez inapplicable to the case at hand.
Since we find that the claim “is of the kind that is unlikely to be able to certified before it becomes moot,” and thereby meets the first requirement of Gerstein, all Olson must show is that the claim is likely to recur with regard to the class, not that the claim is likely to recur with regard to him. The pervasive nature of these claims, as evidenced by the fifty-three affidavits outlining problems similar to those complained of by Olsen, makes it likely that TCJ’s alleged practices of opening inmates’ legal mail, denying inmates access to the law library, and failing to respond to inmates’ grievances will continue. Therefore, this case meets the second requirement of the inherently transitory exception.
As a final argument, Brown urges us to affirm the dismissal of the suit on the ground that it fails to state a claim for which relief may be sought. However, the district court did not reach this issue before dismissing the case for lack of jurisdiction. Therefore, we do not reach the issue of whether the pleadings state a claim for which relief may be sought.
Additionally, Olson asks that we address the issue of class certification. We decline this invitation. A district court has broad discretion to determine whether certification of a class action lawsuit is appropriate. Mira v. Nuclear Measurements Corp., 107 F.3d 466, 474 (7th Cir. 1997). Therefore, we remand to the district court to determine whether class certification is appropriate in this case.

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III. Conclusion
For the above stated reasons, we REVERSE the district court’s dismissal of the complaint as moot. We REMAND for consideration of the plaintiff’s motion for class certification and defendant’s motion for dismissal for failure to state a claim.

2-4-10

 
 case 4:09-cv-00006-PRC document 83 filed 05/16/13 page 1 of 1

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA HAMMOND DIVISION AT LAFAYETTE

JEFFREY MARK OLSON, on his own )

behalf and on behalf of a class of those )

similarly situated,

)

Plaintiffs,

)

)

v.

)

)

TRACY BROWN, in his official capacity )

as Sheriff of Tippecanoe County,

)

)

Defendant.

)

CAUSE NO. 4:09-CV-6-PRC

PRELIMINARY APPROVAL ORDER

This matter is before the Court on a Stipulation to Enter Private Settlement Agreement Following

Notice to the Class [DE 80], f iled by the parties on May 7, 2013, and an Unopposed Motion to Approve

Form and Manner of Notice to the Class [DE 81], filed by the parties on May 7, 2013.

Having considered the filings and finding themwell taken, the Court herebyGRANTS the motion

contained within the Stipulation to Enter PrivateSettlement Agreement Following Notice to the Class [DE

80] and GRANTS the Unopposed Motion to Approve Form and Manner of Notice to the Class [DE 81].

The Court ORDERS that the Defendant s hall effect class notice in the m anner described in the

Motion.

The Court further ORDERS that, not earlier than thirty (30) days after the notice is posted and/or

delivered, Plaintiffs’ counsel shall report to the Courat s to any comments from the members of the certified

class.

SO ORDERED this 16th day of May, 2013.

cc: All counsel of record

s/ Paul R. Cherry MAGISTRATE JUDGE PAUL R. CHERRY UNITED STATES DISTRICT COURT

1

 
 Case: 4:09-cv-00006-PRC As of: 09/27/2013 08:03 AM EDT 1 of 8
CLASS,CONMAG,TERMED
U.S. District Court Northern District of Indiana [LIVE] USDC Northern Indiana (Lafayette)
CIVIL DOCKET FOR CASE #: 4:09−cv−00006−PRC

Olson v. Brown Assigned to: Magistrate Judge Paul R Cherry Case in other court: USCA, 09−02728
Tippecanoe Superior Court 1, 79D01−0901−PL−00001 Cause: 28:1441 Petition for Removal− Civil Rights Act
Plaintiff

Date Filed: 01/20/2009 Date Terminated: 08/19/2013 Jury Demand: None Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question

Jeffrey Mark Olson on his own behalf and on behalf of a class similarly situated

represented by Gavin M Rose ACLU of Indiana 1031 E Washington St Indianapolis, IN 46202 317−635−4059 Ext 106 Fax: 317−635−4105 Email: grose@aclu−in.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kenneth J Falk ACLU of Indiana 1031 E Washington St Indianapolis, IN 46202 317−635−4059 Ext 104 Fax: 317−635−4105 Email: kfalk@aclu−in.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
Tracy Brown in his official capacity as Sheriff of Tippecanoe County

represented by Douglas J Masson Hoffman Luhman &Masson PC 200 Main Street Suite C PO Box 99 Lafayette, IN 47902−0099 765−423−5404 Fax: 765−742−6448 Email: djm@hlblaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 01/02/2009
01/02/2009
01/02/2009

# Docket Text
1 COMPLAINT against Tracy Brown, filed by Jeffrey Mark Olson (filed in Tippecanoe Superior Court 1). (Attachments: # 1 grievances)(csi) (Entered: 01/21/2009)
2 MOTION to Certify Class (filed in Tippecanoe Superior Court 1) by Plaintiff Jeffrey Mark Olson. (csi) Modified on 1/23/2009 to edit document # (mlc). (Entered: 01/22/2009)
3 MEMORANDUM in Support of 3 MOTION to Certify Class (filed in Tippecanoe Superior Court 1) filed by Jeffrey Mark Olson. (csi) Modified on 1/23/2009 to edit document # (mlc). (Entered: 01/22/2009)

Case: 4:09-cv-00006-PRC As of: 09/27/2013 08:03 AM EDT 2 of 8

01/20/2009
01/20/2009 01/26/2009 01/26/2009 02/02/2009 02/17/2009 02/17/2009 02/20/2009 02/24/2009
02/26/2009 02/26/2009 02/27/2009 03/04/2009 03/06/2009 03/10/2009

4 NOTICE OF REMOVAL by Tracy Brown from Tippecanoe Superior Court 1, case number 79D01−0901−PL−00001. ( Filing fee $ 350), filed by Tracy Brown. (Attachments: # 1 complaint.st court, # 2 grievances, # 3 Civil Cover Sheet, # 4 atty apr.Rose, # 5 summons)(csi) Modified on 1/23/2009 to edit document # (mlc). (Entered: 01/22/2009)
5 NOTICE of Appearance by Douglas J Masson on behalf of Tracy Brown (csi) (Entered: 01/22/2009)
6 NOTICE of Hearing: Telephonic Rule 16 Preliminary Pretrial Conference set for 3/12/2009 09:15 AM CST − Hammond before Magistrate Judge Paul R Cherry w/the Court initiating the conference.(smb) (Entered: 01/26/2009)
7 MAGISTRATE JUDGE CONSENT FORMS sent to all parties (Standard Track). (smb) (Entered: 01/26/2009)
8 ANSWER to 1 Complaint by Tracy Brown.(Masson, Douglas) (Entered: 02/02/2009)
9 NOTICE by Jeffrey Mark Olson of Tender of Proposed Order Certifying Cause as Class Action (Falk, Kenneth) (Entered: 02/17/2009)
10 RESPONSE in Opposition re 2 MOTION to Certify Class filed by Tracy Brown. (Attachments: # 1 Exhibit DOC Offender Data, # 2 Exhibit DOC 2008 Jail Inspection, # 3 Exhibit Jail Mail Policies)(Masson, Douglas) (Entered: 02/17/2009)
11 REPORT of Rule 26(f) Planning Meeting. (Masson, Douglas) (Entered: 02/20/2009)
12 REPLY to Response to Motion re 2 MOTION to Certify Class filed by Jeffrey Mark Olson. (Attachments: # 1 Exhibit DOC Jail Inspection Report, # 2 Affidavit Anthony T. Massengill, # 3 Affidavit Timothy L. Adams, # 4 Affidavit Cornelius Powell, # 5 Affidavit Forrest B. Elliott, # 6 Affidavit Scott Isbell, # 7 Affidavit Troy Smith, # 8 Affidavit Timothy Reynolds, # 9 Affidavit Deon Harris, # 10 Affidavit Roderick Elam, # 11 Affidavit Tromaine A. Langham, # 12 Affidavit Michael Eugene Crank, # 13 Affidavit Donald W. Anderson, # 14 Affidavit Adam Troy Shumpert, # 15 Affidavit Jamaal L. Moore, # 16 Affidavit Ronald Cheesman, # 17 Affidavit Carlo Palermo, # 18 Affidavit Qune Vantrease, # 19 Affidavit Kenneth Norwood, # 20 Affidavit Gerald Thomas Schofield, # 21 Affidavit Nathan Deardurff, # 22 Affidavit Edward Alan Luman, Sr., # 23 Affidavit Rami Wahood, # 24 Affidavit Mark O'Connor, # 25 Affidavit Jonathon W. Haniton, # 26 Affidavit Cortney Michael Hayenga, # 27 Affidavit William M. Harrison)(Rose, Gavin) (Entered: 02/24/2009)
13 MOTION Permit Ex Parte Communication with Putative Class Members by Plaintiff Jeffrey Mark Olson. (Rose, Gavin) (Entered: 02/26/2009)
14 MEMORANDUM in Support of 13 MOTION Permit Ex Parte Communication with Putative Class Members filed by Jeffrey Mark Olson. (Rose, Gavin) (Entered: 02/26/2009)
NOTICE: Motions 02 and 13 are set for Oral Argument for 3/18/2009 at 2:00 PM (EST) in the first floor courtroom in US District Court − in SOUTH BEND before Judge Allen Sharp. This is a text−only entry with no order to follow. (saj) (Entered: 02/27/2009)
AMENDED NOTICE: The Motion Hearing set for 3/18/2009 at 2:00 PM in the first floor courtroom in US District Court − South Bend before Judge Allen Sharp is only concerning the 2 Motion to Certify Class. This is a text−only entry with no order to follow. (saj) (Entered: 03/04/2009)
15 RESPONSE in Opposition re 13 MOTION Permit Ex Parte Communication with Putative Class Members filed by Tracy Brown. (Attachments: # 1 Exhibit Attorney Correspondence)(Masson, Douglas) (Entered: 03/06/2009)
16 MOTION for Leave to File Additional Evidentiary Material in Support of Motion for Class Certification by Plaintiff Jeffrey Mark Olson. (Attachments: # 1 Affidavit Jeffrey Mark Olson, # 2 Affidavit Thomas Bray, # 3 Affidavit James Johnson, # 4 Affidavit Curt Matthew Howard, # 5 Affidavit Jason G. Patterson, # 6 Affidavit

Case: 4:09-cv-00006-PRC As of: 09/27/2013 08:03 AM EDT 3 of 8

03/12/2009
03/13/2009 03/13/2009 03/13/2009 03/13/2009 03/18/2009
03/19/2009 03/20/2009 03/23/2009
03/31/2009 04/03/2009 04/27/2009 04/27/2009

Justin Paul Stetler, # 7 Affidavit Alfonso Calderson, # 8 Affidavit Moses Campos)(Rose, Gavin) (Entered: 03/10/2009)
22 RULE 16 PRELIMINARY PRETRIAL CONFERENCE held teleph 3/12/2009 before Magistrate Judge Paul R Cherry. Pla appeared by atty Gavin Rose. Dft appeared by atty Doug Masson. Planning Meeting Report 11 approved. All dates/ddl through close of discovery are adopted herein. Any amendments to the pleadings to be filed by 7/1/2009. Discovery deadline is 12/31/2009. Expert Discovery deadline is 12/31/2009 Plaintiff expert witness disclosures and reports to be delivered to the defendant by 9/1/2009. Defendant expert witness disclosures and reports to be delivered to the plaintiff by 10/1/2009. Initial Disclosures to be exchanged by 4/20/2009. All other dates/ddl to be set by District Court upon conclusion of discovery. Magistrate Consent forms ddl extended to 4/6/2009. (#FTR.) (smb) (Entered: 03/18/2009)
17 REPLY to Response to Motion re 13 MOTION Permit Ex Parte Communication with Putative Class Members filed by Jeffrey Mark Olson. (Rose, Gavin) (Entered: 03/13/2009)
18 STIPULATION of Fact by Plaintiff Jeffrey Mark Olson. (Rose, Gavin) (Entered: 03/13/2009)
19 MOTION for Judgment on the Pleadings by Defendant Tracy Brown. (Masson, Douglas) (Entered: 03/13/2009)
20 MEMORANDUM in Support of 19 MOTION for Judgment on the Pleadings filed by Tracy Brown. (Masson, Douglas) (Entered: 03/13/2009)
21 MOTION HEARING held on 3/18/2009 re 2 MOTION to Certify Class filed by Jeffrey Mark Olson before Judge Allen Sharp. Pltf appeared by atty Rose. Deft appeared by atty Masson. Court heard argument from counsel. Court reserves ruling on the Motion to Certify Class 2 until the court has ruled on the 19 Motion for Judgment on the pleadings (when it is ripe). 1:58−2:45 (Court Reporter Hoffman) (saj) (Entered: 03/18/2009)
23 MOTION for Extension of Time to File Response/Reply as to 19 MOTION for Judgment on the Pleadings (Unopposed) by Plaintiff Jeffrey Mark Olson. (Rose, Gavin) (Entered: 03/19/2009)
24 ORDER granting 23 Motion for Extension of Time to File Response in Opposition to Motion for Judgment on the Pleadings. Response to be filed by 4/30/2009. Signed by Magistrate Judge Paul R Cherry on 3/20/09. (csi) (Entered: 03/20/2009)
25 ORDER granting 13 Motion to permit Ex Parte Contact with Putative Class Members and Orders that Plaintiff shall be permitted to contact, ex parte, members of the putative class through the mailing of a questionnaire prepared by Plaintiff's counsel that (a) seeks information regarding the disputed practices or policies at issue in the instant matter and (b) is to be returned directly to Plaintiff's counsel. Signed by Magistrate Judge Paul R Cherry on 3/23/09. (csi) (Entered: 03/24/2009)
26 ORDER granting 16 Motion for Leave to Submit Additional Evidentiary Material in Support of Motion for Class Certification. Plaintiffs to file the add'l evidentiary material, currently docketed as attachments to the instand Motion, in support of their Motion for Class Certification by 4/3/09. Signed by Magistrate Judge Paul R Cherry on 3/31/09. (csi) (Entered: 03/31/2009)
27 NOTICE by Jeffrey Mark Olson re 26 Order on Motion for Leave to File, Notice of Filing of Additional Evidentiary Material (Attachments: # 1 Affidavit, # 2 Affidavit, # 3 Affidavit, # 4 Affidavit, # 5 Affidavit, # 6 Affidavit, # 7 Affidavit, # 8 Affidavit)(Rose, Gavin) (Entered: 04/03/2009)
28 RESPONSE in Opposition re 19 MOTION for Judgment on the Pleadings filed by Jeffrey Mark Olson. (Rose, Gavin) (Entered: 04/27/2009)
29 Second MOTION for Leave to File Additional Evidentiary Material in Support of Class Motion by Plaintiff Jeffrey Mark Olson. (Attachments: # 1 Affidavit, # 2 Affidavit, # 3 Affidavit, # 4 Affidavit, # 5 Affidavit, # 6 Affidavit, # 7 Affidavit, # 8 Affidavit, # 9 Affidavit, # 10 Affidavit, # 11 Affidavit, # 12 Affidavit, # 13

Case: 4:09-cv-00006-PRC As of: 09/27/2013 08:03 AM EDT 4 of 8

04/28/2009
05/01/2009
05/04/2009 05/22/2009 06/12/2009 06/15/2009
06/22/2009
06/23/2009 07/07/2009 07/07/2009 07/08/2009 07/08/2009 07/08/2009 07/09/2009 07/14/2009 07/30/2009 08/04/2009

Affidavit, # 14 Affidavit, # 15 Affidavit, # 16 Affidavit, # 17 Affidavit, # 18 Affidavit, # 19 Affidavit, # 20 Affidavit)(Rose, Gavin) (Entered: 04/27/2009)
30 ORDER granting 29 Motion for Leave to Submit Additional Evidentiary Material in Support of Motion for Class Certification (DE29) and ORDERS plaintiffs to file the additional evidentiary material, currently docketed as attachments to the instant Motion, in support of their Motion for Class Certification, by May 1, 2009. Signed by Magistrate Judge Paul R Cherry on 4/28/09. (csi) (Entered: 04/28/2009)
31 NOTICE by Jeffrey Mark Olson re 30 Order on Motion for Leave to File, Filing of Additional Evidentiary Material (2d) (Attachments: # 1 Affidavit, # 2 Affidavit, # 3 Affidavit, # 4 Affidavit, # 5 Affidavit, # 6 Affidavit, # 7 Affidavit, # 8 Affidavit, # 9 Affidavit, # 10 Affidavit, # 11 Affidavit, # 12 Affidavit, # 13 Affidavit, # 14 Affidavit, # 15 Affidavit, # 16 Affidavit, # 17 Affidavit, # 18 Affidavit, # 19 Affidavit, # 20 Affidavit)(Rose, Gavin) (Entered: 05/01/2009)
32 REPLY to Response to Motion re 19 MOTION for Judgment on the Pleadings filed by Tracy Brown. (Masson, Douglas) (Entered: 05/04/2009)
33 NOTICE by Jeffrey Mark Olson of Change in Attorney Contact Information (Rose, Gavin) (Entered: 05/22/2009)
34 MOTION to Stay Deadlines Pending Decision on Motion for Judgment on the Pleadings (Unopposed) by Plaintiff Jeffrey Mark Olson. (Rose, Gavin) (Entered: 06/12/2009)
35 ORDER granting 34 Motion to Stay Case Management Deadlines Pending Decision on Defendant's Motion for Judgment on the Pleadings. Stays the case management deadlines and vacates all hearings in this matter, to be reset by telephonic conference at later date, pending resolution of Deft's Motion for Judgment on the pleadings. Signed by Magistrate Judge Paul R Cherry on 6/15/09. (csi) (Entered: 06/16/2009)
36 MEMORANDUM OPINION AND ORDER granting 19 Motion for Judgment on the Pleadings, as this case is deemed moot and is dismissed without prejudice. Each party to bear its own costs. Signed by Judge Allen Sharp on 6/22/09. (csi) (Entered: 06/23/2009)
37 CLERK'S ENTRY OF JUDGMENT. (csi) (Entered: 06/23/2009)
38 NOTICE OF APPEAL as to 37 Clerks Judgment, 36 Order on Motion for Judgment on the Pleadings by Jeffrey Mark Olson. (Rose, Gavin) (Entered: 07/07/2009)
39 Docketing Statement re: 38 Notice of Appeal filed by Jeffrey Mark Olson. (Rose, Gavin) (Entered: 07/07/2009)
40 USCA Appeal Fees in the amount of $ 455, receipt number 4142305 re 38 The Notice of Appeal filing fee was paid on *7/8/09*. edited text(csi) Modified on 7/8/2009 (csi). (Entered: 07/08/2009)
41 Short Record Sent to US Court of Appeals re 38 Notice of Appeal (csi) (Entered: 07/08/2009)
42 USCA Case Number 09−2728 for 38 Notice of Appeal filed by Jeffrey Mark Olson. (csi) (Entered: 07/09/2009)
43 TRANSCRIPT REQUEST by Jeffrey Mark Olson re 38 Notice of Appeal (Rose, Gavin) (Entered: 07/09/2009)
44 DESIGNATION of Record on Appeal by Jeffrey Mark Olson re 38 Notice of Appeal (Attachments: # 1 Exhibit Designated Record Documents)(Rose, Gavin) (Entered: 07/14/2009)
45 TRANSCRIPT REQUEST. No transcript ordered by Jeffrey Mark Olson. (smp) (Entered: 07/31/2009)
46 TRANSCRIPT REQUEST by Tracy Brown for proceedings held on March 18, 2009 before Judge Judge Sharp, re 38 Notice of Appeal Transcript due by

Case: 4:09-cv-00006-PRC As of: 09/27/2013 08:03 AM EDT 5 of 8

08/12/2009
10/06/2009 10/06/2009 10/07/2009 02/26/2010 03/04/2010 03/24/2010 03/25/2010 03/25/2010

9/4/2009. (Masson, Douglas) (Entered: 08/04/2009)
47 TRANSCRIPT of Oral Argument held on 3/18/2009, before Judge Allen Sharp. Court Reporter Joanne Hoffman, Telephone number 574−246−8038. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.
IMPORTANT: Notice is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above matter. The parties have 7 calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. Within 21 days of the filing of the transcript, a Redaction Request − Transcript shall be e−filed with the Court. Access to this request will be restricted to the Court and attorneys of record in the case. If no such Notice and Redaction Request are filed, the transcript may be made remotely, electronically available to the public without redaction. Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the Court Reporter. Counsel are strongly urged to share this notice with all clients so that an informed decision about the inclusion of certain materials may be made. The responsibility for redacting these personal identifiers rests solely with counsel and the parties. The Clerk and Court Reporter will not review each transcript for compliance with this rule.
Notice of Intent to Redact due 8/24/2009. Redaction Request due 9/2/2009. Redacted Transcript Deadline set for 9/14/2009. Release of Transcript Restriction set for 11/10/2009. (ksc) (Entered: 08/13/2009)
48 Letter from 7th Circuit Court of Appeals requesting record on appeal. (csi) (Entered: 10/06/2009)
49 Certified and Transmitted Record on Appeal to US Court of Appeals re 38 Notice of Appeal (csi) (Additional attachment(s) added on 10/6/2009: # 1 Main Document) (csi). (Entered: 10/06/2009)
50 RECEIPT by USCA of appeal record 1 vol pleadings, 1 vol transcripts. (mlc) (Entered: 10/08/2009)
51 MANDATE, FINAL JUDGMENT and BILL OF COSTS of USCA as to 38 Notice of Appeal filed by Jeffrey Mark Olson; Reversing with costs the District Court's dismissal of the complaint as moot. Remanded for consideration of the plaintiff's motion for class certification and defendant's motion for dismissal for failure to state a claim. No record to be returned. (mlc) (Entered: 03/01/2010)
52 ORDER REASSIGNING CASE. Case reassigned to Judge Philip P Simon for all further proceedings. Judge Allen Sharp no longer assigned to case, Case reopened. This matter has been remanded by the United States Court of Appeals for the Seventh Circuit for further proceedings. In view of the death of Judge Allen Sharp, and in accordance with Local Rule 40.1(f), the Clerk shall randomly assign a new district judge to preside in this case. copy of order sent to Jeffery Mark Olson. Signed by Judge Philip P Simon on 3/4/10. (csi) (Entered: 03/04/2010)
53 MOTION for Leave to File Supplemental Affidavit of Jeffrey Mark Olson (in Supp. of Mot. for Class Certification) by Plaintiff Jeffrey Mark Olson. (Attachments: # 1 Affidavit Exh. 56 (Supp. Aff. of Jeffrey Mark Olson))(Rose, Gavin) (Entered: 03/24/2010)
54 ORDER granting 53 Motion for Leave to submit supplemental affidavit of Jeffrey Mark Olson in support of motion for Class Certification. The Court orders Plaintiffs to file their Supplemental Affidavit of Jeffrey Mark Olson, which is currently docketed as an attachment to the instant Motion, by 4/1/10. Signed by Magistrate Judge Paul R Cherry on 3/25/10. (csi) (Entered: 03/25/2010)
55 NOTICE by Jeffrey Mark Olson re 54 Order on Motion for Leave to File, Notice of Filing Supplemental Affidavit of Jeffrey Mark Olson (Attachments: # 1 Affidavit (Supplemental Affidavit of Jeffrey Mark Olson))(Rose, Gavin) (Entered: 03/25/2010)

Case: 4:09-cv-00006-PRC As of: 09/27/2013 08:03 AM EDT 6 of 8

04/29/2010 06/03/2010 06/25/2010 08/03/2010
09/02/2010
10/01/2010 10/04/2010 10/15/2010 10/19/2010 06/24/2011 07/08/2011
07/11/2011 07/20/2011
07/20/2011 07/26/2011 07/25/2012

56 NOTICE by Tracy Brown of filing of Petition for Certiorari with the U.S. Supreme Court (Attachments: # 1 Exhibit Petition for Certiorari)(Masson, Douglas) (Entered: 04/29/2010)
57 ORDER REASSIGNING CASE. Case reassigned to Judge Jon E DeGuilio for all further proceedings. Chief Judge Philip P Simon no longer assigned to case. Signed by Chief Judge Philip P Simon on 6/3/10. (jld) (Entered: 06/03/2010)
58 NOTICE by Jeffrey Mark Olson re 56 Notice (Other) Regarding Petition for Writ of Certiorari (Rose, Gavin) (Entered: 06/25/2010)
NOTICE: Based on the 7th Circuit Court of Appeals Opinion, this case is set for a Status Conference on 9/2/2010 at 11:00 AM (EST) in the first floor courtroom of the US District Court in South Bend before Judge Jon E DeGuilio. (saj) (Entered: 08/03/2010)
59 STATUS CONFERENCE held on 9/2/2010 before Judge Jon E DeGuilio. Pla appeared by atty Rose. Dft appeared by atty Masson. Court heard from counsel. The parties are to refile their briefs/motions by 10/4/2010. The responses thereto are due by 10/19/2010. 10:49−11:00 (Court Reporter Spromberg) (saj) (Entered: 09/02/2010)
60 MEMORANDUM in Support of 2 MOTION to Certify Class (Supplemental Memorandum) filed by Jeffrey Mark Olson. (Rose, Gavin) (Entered: 10/01/2010)
61 MEMORANDUM in Support of 19 MOTION for Judgment on the Pleadings filed by Tracy Brown. (Masson, Douglas) (Entered: 10/04/2010)
62 RESPONSE in Opposition re 19 MOTION for Judgment on the Pleadings (Supplemental Response) filed by Jeffrey Mark Olson. (Rose, Gavin) (Entered: 10/15/2010)
63 RESPONSE in Opposition re 2 MOTION to Certify Class Second Response filed by Tracy Brown. (Attachments: # 1 Affidavit Affidavit of Denise Saxton)(Masson, Douglas) (Entered: 10/19/2010)
64 SUPPLEMENT to 63 Response in Opposition to Motion Designation of Additional Authority filed by Tracy Brown. (Masson, Douglas) (Entered: 06/24/2011)
65 MOTION for Leave to File Short Response to Sheriff's Desigation of Additional Authority Concerning Motion for Class Certifcation (Doc. 64) by Plaintiff Jeffrey Mark Olson. (Attachments: # 1 Exhibit Response Brief to Sheriff's Designation)(Rose, Gavin) (Entered: 07/08/2011)
NOTICE TO COUNSEL: Any response to the 65 Motion for Leave to File Short Response should be filed by 7/15/2011. No reply is necessary. This is a text−only entry. (saj) (Entered: 07/11/2011)
66 ORDER granting 65 Motion for Leave to File a Short Response to the Defendant's Designation of Additional Authority Concerning Class Certification. Plaintiff's Response is DEEMED filed as of today's date and the Defendant has seven calendar days in which to file any reply. Signed by Judge Jon E DeGuilio on 07/20/11. (ksp) (Entered: 07/20/2011)
67 RESPONSE to Sheriff's Designation of Additional Authority Concerning Motion for Class Certification by Jeffrey Mark Olson to 64 Supplement. (ksp) (Entered: 07/20/2011)
68 REPLY to Response to Motion re 2 MOTION to Certify Class Designation of Supplemental Authority filed by Tracy Brown. (Masson, Douglas) (Entered: 07/26/2011)
69 OPINION AND ORDER. The Court GRANTS in part and DENYS in part Mr. Olson's Motion to Certify Class; ORDERS that this case be certified as a class action with the class and subclass defined as stated in Section II.B.5, supra; APPOINTS Gavin Rose and Kenneth Falk as class counsel; and, DIRECTS class counsel to provide notice of this certification to each individual member of the class who can be identified through reasonable effort. Finally, because Mr. Olson's standing in this case is contingent on class certification, the Court DISMISSES AS

Case: 4:09-cv-00006-PRC As of: 09/27/2013 08:03 AM EDT 7 of 8

07/25/2012 08/28/2012 09/13/2012 10/05/2012 10/10/2012
10/10/2012 11/29/2012 12/05/2012
12/05/2012 03/07/2013
03/07/2013
03/11/2013

MOOT any claims not certified for class treatment. Signed by Judge Jon E DeGuilio on 07/25/12. (ksp) (Entered: 07/25/2012)
70 OPINION AND ORDER. The Court GRANTS IN PART AND DENIES IN PART the Defendant's motion for judgment on the pleadings. Signed by Judge Jon E DeGuilio on 07/25/12. (ksp) (Entered: 07/25/2012)
71 USCA ORDER in Case No. 12−8031: Defendant Tracy Brown's Petition for Permission to Appeal Class Certification Order is DENIED. Dated 08/27/12(ksp) (Entered: 08/28/2012)
72 NOTICE of Hearing: Telephonic Status/Scheduling Conference set for 10/10/2012 11:00 AM Central before Magistrate Judge Paul R Cherry w/the Court initiating the schedule. The Court invites party(s) to file a joint proposed scheduling plan if applicable at least 24 hrs in advance. (smb) (Entered: 09/13/2012)
73 REPORT of Rule 26(f) Planning Meeting. (Masson, Douglas) (Entered: 10/05/2012)
74 SCHEDULING CONFERENCE held by teleph 10/10/2012 before Magistrate Judge Paul R Cherry. Pla appeared by atty Gavin Rose. Dft appeared by atty Douglas Masson. All dates/ddl in Joint Report 73 through close of discovery are adopted and incorporated herien. Any motion for leave to amend pleadings to be filed by 1/1/2013. Discovery deadline is 9/1/2013. Expert Discovery deadline is 9/1/2013. Defendant expert witness disclosures and reports to be delivered to the plaintiff by 7/1/2013. Plaintiff expert witness disclosures and reports to be delivered to the defendant by 6/1/2013. Initial Disclosures to be exchanged by 12/4/2012. The summary judgment ddl in FRCP 56 shall not apply. All other dates/ddl to be set by the presiding trial judge at later date. (Tape #FTR.) (smb) (Entered: 10/15/2012)
***Deadlines/Hearings terminated. (mlc) (Entered: 10/16/2012)
75 Joint MOTION to Stay Case Management Deadlines Pending Potential Settlement by Defendant Tracy Brown, Plaintiff Jeffrey Mark Olson. (Rose, Gavin) (Entered: 11/29/2012)
76 ORDER granting 75 Joint Motion to Stay Case Management Deadlines Pending Potential Settlement. This case is STAYED through 3/7/2013. Telephonic Status Conference set for 3/7/2013 at 09:30 AM in US District Court − Hammond before Magistrate Judge Paul R Cherry. The Court VACATES all deadlines in this matter, to be reset by telephonic conference, if necessary. Signed by Magistrate Judge Paul R Cherry on 12/05/12. (ksp) (Entered: 12/05/2012)
***Deadlines/Hearings terminated. (ksp) (Entered: 12/05/2012)
77 TELEPHONIC STATUS CONFERENCE held 3/7/2013 before Magistrate Judge Paul R Cherry. Pla appeared by atty Gavin Rose. Dft appeared by atty Douglas Masson. Class action settlement reached. The Court having been orally advised that the parties consent to the jurisdiction of the magistrate judge, the court will accept this notification as if they had executed the appropriate written form. The Court will reserve 7/17/2013 9:00 AM Central for the Class Action Fairness Hearing to be held before Magistrate Judge Paul R Cherry. If the hearing is uncontested the Court will conduct the hearing telephonically. (Tape #FTR.) (smb) (Entered: 03/08/2013)
78 NOTICE OF REASSIGNMENT OF CASE TO MAGISTRATE JUDGE: The parties having orally consented pursuant to 28 U.S.C. Section 636(c), this case is referred to Magistrate Judge Paul R Cherry for all purposes and is reassigned pursuant to General Order 2007−10 from Magistrate Judge Paul R Cherry and Judge Jon E DeGuilio to Magistrate Judge Paul R Cherry. (smb) (Entered: 03/08/2013)
79 ORDER setting telephonic preliminary class action settlement approval hearing. Hearing set for 5/16/2013 at 10:30 AM in US District Court − Hammond before Magistrate Judge Paul R Cherry. The Court ORDERS the parties to file a joint motion for preliminary class action settlement approval, with the proposed settlement agreement attached as an exhibit, on or before 5/13/13. See Order for

Case: 4:09-cv-00006-PRC As of: 09/27/2013 08:03 AM EDT 8 of 8

05/07/2013 05/07/2013 05/16/2013
05/16/2013
07/05/2013 07/17/2013
07/19/2013 08/06/2013 08/09/2013 08/09/2013 08/12/2013 08/19/2013

additional rulings. Signed by Magistrate Judge Paul R Cherry on 03/11/13. (ksp) (Entered: 03/11/2013)
80 STIPULATION to Enter Private Settlement Agreement Following Notice to the Class by Defendant Tracy Brown, Plaintiff Jeffrey Mark Olson. (Attachments: # 1 Exhibit Proposed Private Settlement Agreement)(Rose, Gavin) (Entered: 05/07/2013)
81 Consent MOTION Approve Form and Manner of Notice to the Class by Plaintiff Jeffrey Mark Olson. (Attachments: # 1 Exhibit Class Notice)(Rose, Gavin) (Entered: 05/07/2013)
82 TELEPHONE CONFERENCE/PRELIMINARY APPROVAL HEARING held on 5/16/2013 before Magistrate Judge Paul R Cherry. Pla appeared by atty Gavin Rose. Dft appeared by atty Douglas Masson. Comments presented. The Court will grant DE 80 and 81 by separate order. The Court confirms the 7/17/2013 9:00 AM for Class Action Fairness Hearing to be conducted telephonically if uncontested. (Tape #FTR.) (smb) (Entered: 05/17/2013)
83 ORDER granting 80 Stipulation to Enter Private Settlement Agreement and Notice to Class; granting 81 Motion to Approve Form and Manner of Notice of Class. Defendant shall effect class notice in the manner described in the Motion. Signed by Magistrate Judge Paul R Cherry on 5/16/2013. (smb) Modified to correct signature date on 5/21/2013 (tc). (Entered: 05/17/2013)
84 REPORT by Jeffrey Mark Olson oc Class Counsel and Request that Proposed Settlement Agreement Be Deemed Appropriate Following Fairness Hearing. (Attachments: # 1 Exhibit 1 (Letter from Class Members), # 2 Exhibit 2 (Letter from Class Member))(Rose, Gavin) (Entered: 07/05/2013)
85 FAIRNESS/APPROVAL HEARING held on 7/17/2013 before Magistrate Judge Paul R Cherry. Pla appeared by atty Gavin Rose. Dft appeared by atty Douglas Masson. Court finds that the settlement reached in this case is reasonable and the settlement is approved. Proposed Preliminary Final Approval order to be submitted to cherry_chambers@innd.uscourts.gov. (Tape #FTR.) (smb) (Entered: 07/18/2013)
86 ORDER Finding Private Settlement Agreement to be Fair, Reasonable, and Adequate 84 Report, filed by Jeffrey Mark Olson. (see order for further details) Signed by Magistrate Judge Paul R Cherry on 7/19/13. (mlc) (Entered: 07/19/2013)
87 NOTICE by Jeffrey Mark Olson of Class Counsel (Rose, Gavin) (Entered: 08/06/2013)
88 MOTION to Dismiss with Prejudice by Plaintiff Jeffrey Mark Olson. (Rose, Gavin) (Entered: 08/09/2013)
89 ORDER denying without prejudice 88 Motion to Dismiss. Signed by Magistrate Judge Paul R Cherry on 08/09/13. (ksp) (Entered: 08/09/2013)
90 STIPULATION to Dismiss by Plaintiff Jeffrey Mark Olson, Defendant Tracy Brown. (Rose, Gavin) (Entered: 08/12/2013)
91 ORDER granting 90 Stipulation to Dismiss. This matter is DISMISSED with prejudice. Signed by Magistrate Judge Paul R Cherry on 08/19/13. (ksp) (Entered: 08/19/2013)