IN THE DISTRICT COURT OF THE UNITED STATES FOR THE

MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

J.B., a minor child, by and )

through his next friend, )

Addie Ward, on behalf of )

himself and all others )

similarly situated, )

)

Plaintiff, )

) CIVIL ACTION NO.

v. ) 2:06cv755-MHT

) (WO) 

WALTER WOOD, in his )

individual capacity, )

)

Defendant. )

J.B., a minor child, by and )

through his next friend, )

Addie Ward, on behalf of )

himself and all others )

similarly situated, )

)

Plaintiff, )

) CIVIL ACTION NO.

v. ) 2:06cv908-MHT

) (WO) 

WALTER WOOD, in his )

individual capacity, )

)

Defendant. )

Case 2:06-cv-00755-MHT-CSC Document 31 Filed 05/30/2007 Page 1 of 15
2

OPINION AND ORDER

Plaintiff J.B., a minor child, brings this civil

action by and through his next friend and greatgrandmother, Addie Ward. J.B. claims that when he was

detained by court order in a county youth facility pending

placement by the Alabama Department of Youth Services

(DYS), he was denied his right under the due process

clause of the Fourteenth Amendment that such placement

take place within a reasonable period of time. He also

brings common-law claims of negligence and wantonness

based on the state-law requirement that DYS “accept all

children committed to it within seven days of notice of

disposition.” 1975 Ala. Code § 12-15-61(c); see also id.

§ 12-15-71(j). J.B. has sued for money damages, naming

Walter Wood, the director of DYS, in his individual

capacity as defendant.

J.B. seeks to pursue his claims as a class action, and

this case is now before the court on his motion for class

certification. The proposed class is all persons

committed to DYS who remained in a detention facility for

Case 2:06-cv-00755-MHT-CSC Document 31 Filed 05/30/2007 Page 2 of 15
1. The prerequisites to a class action are as

follows:

(continued...)

3

longer than seven days before placement and whose claims

are not barred by the applicable statute of limitations.

For the reasons that follow, class certification will be

denied.

I. CLASS-CERTIFICATION STANDARD

“Rule 23 [of the Federal Rules of Civil Procedure]

establishes the legal roadmap courts must follow when

determining whether class certification is appropriate.”

Valley Drug Co. v. Geneva Pharms., Inc., 350 F.3d 1181,

1187 (11th Cir. 2003). The party seeking to maintain the

class action bears the burden of demonstrating that all

the requirements of Rule 23 have been met. Id.

“A class action may be maintained only when it

satisfies all the requirements of Fed. R. Civ. P. 23(a)

and at least one of the alternative requirements of Rule

23(b).” Jackson v. Motel 6 Multipurpose, Inc., 130 F.3d

999, 1005 (11th Cir. 1997) (citations omitted).1

 Failure

Case 2:06-cv-00755-MHT-CSC Document 31 Filed 05/30/2007 Page 3 of 15
1. (...continued)

“One or more members of a class may sue

or be sued as representative parties on

behalf of all only if (1) the class is

so numerous that joinder of all members

is impracticable, (2) there are

questions of law or fact common to the

class, (3) the claims or defenses of the

representative parties are typical of

the claims or defenses of the class, and

(4) the representative parties will

fairly and adequately protect the

interests of the class.”

Fed. R. Civ. P. 23(a).

The three types of class actions maintainable are as

follows:

“(1) the prosecution of separate actions

by or against individual members of the

class would create a risk of

(A) inconsistent or varying

adjudications with respect to individual

members of the class which would

establish incompatible standards of

conduct for the party opposing the

class, or

(B) adjudications with respect to

individual members of the class which

would as a practical matter be

dispositive of the interests of the

other members not parties to the

adjudications or substantially impair or

impede their ability to protect their

interests; or

“(2) the party opposing the class has

acted or refused to act on grounds

generally applicable to the class,

(continued...)

4

Case 2:06-cv-00755-MHT-CSC Document 31 Filed 05/30/2007 Page 4 of 15
1. (...continued)

thereby making appropriate final

injunctive relief or corresponding

declaratory relief with respect to the

class as a whole; or

“(3) the court finds that the questions

of law or fact common to the members of

the class predominate over any questions

affecting only individual members, and

that a class action is superior to other

available methods for the fair and

efficient adjudication of the

controversy. The matters pertinent to

the findings include: (A) the interest

of members of the class in individually

controlling the prosecution or defense

of separate actions; (B) the extent and

nature of any litigation concerning the

controversy already commenced by or

against members of the class; (C) the

desirability or undesirability of

concentrating the litigation of the

claims in the particular forum; (D) the

difficulties likely to be encountered in

the management of a class action.”

Fed. R. Civ. P. 23(b). 

5

to establish any one of the four prerequisites under Rule

23(a) and at least one of the alternative requirements of

Rule 23(b) precludes class certification. Valley Drug,

350 F.3d at 1188 (citing Amchem Prods., Inc. v. Windsor,

521 U.S. 591, 615-18 (1997)).

The court’s role at the class-certification stage is

not to determine the merits of the case, but rather to

Case 2:06-cv-00755-MHT-CSC Document 31 Filed 05/30/2007 Page 5 of 15
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determine whether the purported class representative

satisfies the procedural requirements for class

certification. See Eisen v. Carlisle & Jacquelin, 417

U.S. 156, 177-78 (1974). However, “the trial court can

and should consider the merits of the case to the degree

necessary to determine whether the requirements of Rule 23

will be satisfied.” Valley Drug, 350 F.3d at 1188 n.15;

see also Gen. Tel. Co. v. Falcon, 457 U.S. 147, 160 (1982)

(“sometimes it may be necessary for the court to probe

behind the pleadings”); Cooper v. Southern Co., 390 F.3d

695, 713 (11th Cir. 2004); Telfair v. First Union Mortgage

Corp., 216 F.3d 1333, 1343 (11th Cir. 2000).

II. FACTUAL BACKGROUND

The evidence submitted in connection with the motion

for class certification reflects the following facts. On

April 4, 2006, J.B., then 16, was committed to the custody

of DYS by order of the Juvenile Court of Montgomery

County. The stated mission of DYS is to enhance public

safety by holding juvenile offenders accountable through

Case 2:06-cv-00755-MHT-CSC Document 31 Filed 05/30/2007 Page 6 of 15
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the use of institutional, educational, and community

services that balance the rights and needs of victims,

communities, courts, and offenders. Pending transfer to

DYS, the court ordered that J.B. be detained at the

Montgomery County Youth Facility. State law requires DYS

to “accept all children committed to it within seven days

of notice of disposition.” 1975 Ala. Code § 12-15-61(c);

see also id. §§ 12-15-61(d) & -71(j). However, J.B.’s

detention at the youth facility persisted for 35 days,

until May 10, 2006.

III. DISCUSSION

In this case, J.B. seeks to maintain a class action

under Rule 23(b)(3). As stated, failure to establish any

one of the four prerequisites under Rule 23(a) and at

least one of the alternative requirements of Rule 23(b)

precludes class certification. Valley Drug, 350 F.3d at

1188 (citing Amchem Prods., Inc. v. Windsor, 521 U.S. 591,

615-18 (1997)). It is therefore appropriate to advance

immediately to the requirement under Rule 23 that J.B.

Case 2:06-cv-00755-MHT-CSC Document 31 Filed 05/30/2007 Page 7 of 15
2. In Stein v. Reynolds Securities, Inc., 667 F.2d

33 (11th Cir. 1982), the Eleventh Circuit adopted as

binding precedent all decisions of Unit B of the former

Fifth Circuit handed down after September 30, 1981.

8

cannot satisfy: that “the questions of law or fact common

to the members of the class predominate over any questions

affecting only individual members.” Fed. R. Civ. P.

23(b)(3).

Where, as here, a party seeks to maintain a class

under Rule 23(b)(3), “the issues in the class action that

are subject to generalized proof and thus applicable to

the class as a whole, must predominate over those issues

that are subject only to individualized proof.” Nichols

v. Mobile Bd. of Realtors, Inc., 675 F.2d 671, 676 (5th

Cir. Unit B May 10, 1982).2

 Although there is no brightline test for determining whether common questions

predominate, it is generally accepted that the

predominance requirement is satisfied if there is a common

issue as to liability, even if damages are individual

issues. 5 James Wm. Moore, Moore’s Federal Practice

§ 23.45[1]-[2] (3d ed. 2006). Conversely, “if each class

Case 2:06-cv-00755-MHT-CSC Document 31 Filed 05/30/2007 Page 8 of 15
9

member’s claim would necessitate an individualized

determination of liability,” id. § 23.23[2], then common

questions generally do not predominate.

Here, the predominance requirement is not met because

the court believes that individualized determinations of

liability will be required in order to adjudicate each

class member’s claim. J.B.’s central federal claim is

based on “the unreasonable delay in placement, treatment

and services subsequent to a juvenile’s commitment to the

Alabama Department of Youth Services.” Pl. Br. (doc. no.

20-1) at 1; see also id. at 5 (“The legal theory in this

case is that ... plaintiff was not placed within a

reasonable time....”); Compl. at 6 (“The overriding legal

issue in this case is the ... unreasonable deprivation of

liberty....”). When the factfinder must make findings as

to reasonableness, individualized considerations are

frequently paramount--not simply as to damages, but to

liability as well.

DYS Director Wood has produced unrebutted evidence

that the placement process for juveniles committed to DYS

Case 2:06-cv-00755-MHT-CSC Document 31 Filed 05/30/2007 Page 9 of 15
10

custody involves individualized assessments of each

juvenile. See Pendergast Aff., Def. Ex. 9 (doc. no. 27-4)

at 3 (“When a child is committed to DYS custody, the

Screening and Placement Committee meets and reviews the

child’s characteristics to determine where the child would

most appropriately be staffed.”). DYS classifies

committed juveniles into one or more of six different

categories. There are approximately 30 placement

locations available, each suited for different needs. Not

all locations have vacancies at any given time, however,

and placement is often delayed until a bed becomes

available, depending upon the needs of individual

juveniles and the availability of DYS facilities.

The evidence therefore reflects that in the case of

any individual juvenile committed to DYS custody but not

placed within seven days, the reason such placement has

not occurred in a more timely fashion depends on the facts

and circumstances of that particular case and is therefore

individualized in nature. That is to say, J.B. has

produced no evidence to suggest that DYS has an acrossCase 2:06-cv-00755-MHT-CSC Document 31 Filed 05/30/2007 Page 10 of 15
11

the-board policy of not placing juveniles within a certain

amount of time. Instead, a jury called upon to determine

whether a placement delay was “reasonable” would be

required to evaluate the totality of the circumstances

surrounding each delay.

The Eleventh Circuit Court of Appeals has stated that

23(b)(3) class actions cannot be maintained where

liability determinations require individualized

assessments of each class member’s claim. In Kerr v. City

of West Palm Beach, 875 F.2d 1546, 1557-58 (11th Cir.

1989), the Eleventh Circuit held that the district court

did not err in refusing to certify a class action where

the plaintiffs challenged the police department’s

aggressive use of canine units. The plaintiffs claimed

that the policies of the police department’s canine unit

were unconstitutional per se as excessive force under the

Fourth and Fourteenth Amendments. 875 F.2d at 1548. The

appellate court rejected the plaintiffs’ per-se theory,

noting that excessive-force claims are not amenable to an

“assessment of the abstract constitutionality of

Case 2:06-cv-00755-MHT-CSC Document 31 Filed 05/30/2007 Page 11 of 15
12

government policies,” but instead must be considered “in

light of the unique factual circumstances in which the

police acted.” Id. at 1554. Accordingly, because “the

federal courts must assess the reasonableness of the

officer’s actions in light of the essentially unique

factual circumstances accompanying the arrest” and “[s]uch

determinations cannot be made en masse[,] ... such suits

therefore are especially unsuited to class disposition.”

Id. at 1558.

In this case, J.B.’s claim is subject to analysis

along the same lines. Whether the delay in his placement

was unreasonable, and indeed whether the delay in each

class member’s placement was unreasonable, may well depend

on circumstances unique to each individual juvenile.

Because such determinations cannot be made en masse, their

claims do not meet the predominance requirement of Rule

23(b)(3).

J.B. argues that common questions predominate because

of the common fact that the putative class members

remained in pre-placement detention for longer than seven

Case 2:06-cv-00755-MHT-CSC Document 31 Filed 05/30/2007 Page 12 of 15
13

days and the common legal theory that DYS’s failure to

place them within seven days violates the law. But the

mere fact that DYS did not place putative class members

within seven days as required by state law does not

satisfy the predominance inquiry where the central

question of liability is an individualized reasonableness

inquiry under federal law. There is no federal cause of

action for a violation of state law, and a violation of

state law is not, in itself, a violation of the federal

due process clause. Knight v. Jacobson, 300 F.3d 1272,

1276 (11th Cir. 2002). Therefore, even though there are

common questions of fact and state law, see Fed. R. Civ.

P. 23(a)(2), these issues do not predominate over

questions affecting individual members of the putative

class, Fed. R. Civ. P. 23(b)(3).

Of course, it is theoretically possible that, unlike

in Kerr, this case does present a question of the per se

unconstitutionality of a government policy. That is, J.B.

might wish to pursue the legal theory that, regardless of

individual circumstances, DYS’s failure to place a

Case 2:06-cv-00755-MHT-CSC Document 31 Filed 05/30/2007 Page 13 of 15
14

juvenile within seven days of a commitment order is per se

unconstitutional. If this theory were correct, then

admittedly common questions would predominate over

individual issues. However, the court declines to

recognize predominance under such a dubious legal theory.

Although the court is discouraged from delving into the

merits of a claim during the class-certification stage, it

may do so in order to determine whether the requirements

of Rule 23 have been satisfied. Cooper v. Southern Co.,

390 F.3d 695, 713 (11th Cir. 2004). The court estimates

that the probability of success on the merits of a per-se

reasonableness legal theory is low, especially relative to

the merits of a case-by-case reasonableness theory. The

court has a responsibility to ensure that a class

representative “fairly and adequately protects the

interests of the class,” Fed. R. Civ. P. 23(a)(4), and

that “a class action is superior to other available

methods for the fair and efficient adjudication of the

controversy,” Fed. R. Civ. P. 23(b)(3). If J.B. were

entrusted to pursue a tenuous legal theory on behalf of a

Case 2:06-cv-00755-MHT-CSC Document 31 Filed 05/30/2007 Page 14 of 15
class whose members’ claims would almost certainly be more

likely to succeed if brought as individual actions, then

the court would fail in its independent obligation to

ensure that the individual class members’ interests are

adequately protected.

In sum, questions of law or fact common to the members

of the class do not predominate over questions affecting

only individual members. Even if J.B. were to pursue a

legal theory under which common questions would

predominate, doing so would not fairly and adequately

protect the interests of the class. For these reasons, a

class action is not superior to other available methods

for the fair and efficient adjudication of this

controversy.

Accordingly, it is ORDERED that plaintiff J.B.’s

motion for class certification (doc. no. 21) is denied.

DONE, this the 30th day of May, 2007.

 /s/ Myron H. Thompson 

UNITED STATES DISTRICT JUDGE

Case 2:06-cv-00755-MHT-CSC Document 31 Filed 05/30/2007 Page 15 of 15
A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov

Effective on April 9, 2006, the new fee to file an appeal will increase from $255.00 to $455.00.

CIVIL APPEALS JURISDICTION CHECKLIST

1. Appealable Orders: Courts of Appeals have jurisdiction conferred and strictly limited by

statute:

(a) Appeals from final orders pursuant to 28 U.S.C. § 1291: Only final orders and

judgments of district courts, or final orders of bankruptcy courts which have been

appealed to and fully resolved by a district court under 28 U.S.C.§ 158, generally are

appealable. A final decision is one that “ends the litigation on the merits and leaves

nothing for the court to do but execute the judgment.” Pitney Bowes, Inc. v. Mestre,

701 F.2d 1 365, 1 368 ( 11th Ci r. 1 983). A magistrate judge’s report and

recommendation is not final and appealable until judgment thereon is entered by a

district court judge. 28 U.S.C. § 636(c).

(b) In cases involving multiple parties or multiple claims, a judgment as to fewer than

all parties or all claims is not a final, appealable decision unless the district court has

certified the judgment for immediate review under Fed.R.Civ.P. 54(b). Williams v.

Bishop, 732 F.2d 885, 885- 86 (11th Cir. 1984). A judg ment which resolves all

issues except matters, such as attorneys’ fees and costs, that are collateral to the

merits, is immediately appealable. Budinich v. Becton Dickinson & Co., 486

U.S.196, 201, 108 S.Ct. 1717, 1721-22, 100 L .Ed.2d 178 (1988); LaChance v.

Duffy’s Draft House, Inc., 146 F.3d 832, 837 (11th Cir. 1998).

(c) Appeals pursuant to 28 U.S.C. § 1292(a): Appeals are permitted from orders

“granting, continuing, modifying, refusing or dissolving injunctions or refusing to

dissolve or modify injunctions . . .” and from “[i]nterlocutory decrees . . .

determining the rights and liabilities of parties to admiralty cases in which appeals

from final decrees are allowed.” Interlocutory appeals from orders denying temporary

restraining orders are not permitted.

(d) Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: The certification

specified in 28 U.S.C. § 1292(b) must be obtained before a petition for permission to

appeal is filed in the Court of Appeals. The district court’s denial of a motion for

certification is not itself appealable.

(e) Appeals pursuant to judicially created exceptions to the finality rule: Limited

exceptions are discussed in cases including, but not limited to: Cohen v. Beneficial

Indus. Loan Corp., 337 U.S. 541, 546, 69S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949);

Atlantic Fed. Sav. & Loan Ass’n v. Blythe Eastman Paine Webber, Inc., 890 F.2d

371, 376 (11th Cir. 1989); Gillespie v. United States Steel Corp., 379 U.S. 148, 157,

85 S.Ct. 308, 312, 13 L.Ed.2d 199 (1964).

 Rev.: 4/04

Case 2:06-cv-00755-MHT-CSC Document 31-2 Filed 05/30/2007 Page 1 of 2
2. Time for Filing: The timely filing of a notice of appeal is mandatory and jurisdictional.

Rinaldo v. Corbett, 256 F.3d 1276, 1278 (11th Cir. 2001). In civil cases, Fed.R.App.P. 4(a)

and (c) set the following time limits:

(a) Fed.R.App.P. 4(a)(1): A notice of appeal in compliance with the requirements set

forth in Fed.R.App.P. 3 must be filed in the district court within 30 days after the

entry of the order or judgment appealed from. However, if the United States or an

officer or agency thereof is a party, the notice of appeal must be filed in the district

court within 60 days after such entry. THE NOTICE MUST BE RECEIVED AND

FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF

THE APPEAL PERIOD – no additional days are provided for mailing. Special

filing provisions for inmates are discussed below.

(b) Fed.R.App.P. 4(a)(3): “If one party timely files a notice of appeal, any other party

may file a notice of appeal within 14 days after the date when the first notice was

filed, or within the time otherwise prescribed by this Rule 4(a), whichever period

ends later.”

(c) Fed.R.App.P. 4(a)(4): If any party makes a timely motion in the district court under

the Federal Rules of Civil Procedure of a type specified in this rule, the time for

appeal for all parties runs from the date of entry of the order disposing of the last

such timely filed motion.

(d) Fed.R.App.P. 4(a)(5) and 4(a)(6): Under certain limited circumstances, the district

court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may

be extended if a motion for an extension is filed within 30 days after expiration of the

time otherwise provided to file a notice of appeal, upon a showing of excusable

neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district

court finds upon motion that a party did not timely receive notice of the entry of the

judgment or order, and that no party would be prejudiced by an extension.

(e) Fed.R.App.P. 4(c): If an inmate confined to an institution files a notice of appeal in

either a civil case or a criminal case, the notice of appeal is timely if it is deposited in

the institution’s internal mail system on or before the last day for filing. Timely filing

may be shown by a declaration in compliance with 28 U.S.C. § 1746 or a notarized

statement, either of which must set forth the date of deposit and state that first-class

postage has been prepaid.

3. Format of the notice of appeal: Form 1, Appendix of Forms to the Federal Rules of

Appellate Procedure, is a suitable format. See also Fed.R.App.P. 3(c). A pro se notice of

appeal must be signed by the appellant.

4. Effect of a notice of appeal: A district court loses jurisdiction (authority) to act after the

filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule

on a timely motion of the type specified in Fed.R.App.P. 4(a)(4).

Case 2:06-cv-00755-MHT-CSC Document 31-2 Filed 05/30/2007 Page 2 of 2