In the 

United States Court of Appeals 

For the Seventh Circuit ____________________

Nos. 14‐3753 & 15‐1616

MELVIN PHILLIPS, et al.,

Plaintiffs‐Appellants,

v.

SHERIFF OF COOK COUNTY, et al.,

Defendants‐Appellees.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:09‐cv‐00529 — Joan Humphrey Lefkow, Judge.

____________________

ARGUED FEBRUARY 11, 2016 — DECIDED JULY 6, 2016

____________________

Before KANNE, RIPPLE, and WILLIAMS, Circuit Judges.

RIPPLE, Circuit Judge. Plaintiffs Melvin Phillips, Mal‐

colm Patton, Rodell Sanders, and Frank Powicki are current

and former detainees of Cook County Jail (the “Jail”). They

brought a class action under 42 U.S.C. § 1983 against

Cook County, Illinois, and the Sheriff of Cook County (collec‐

tively, “Cook County”), claiming that the level of dental care

they received at the Jail demonstrated deliberate indifference

in violation of the Eighth and Fourteenth Amendments. The
2 Nos. 14‐3753 & 15‐1616

district court originally certified two classes of plaintiffs un‐

der Federal Rule of Civil Procedure 23. However, the district

court subsequently decertified one class, modified the other

class, and determined that the detainees’ motion for injunc‐

tive relief was moot. The detainees timely appealed the dis‐

trict court’s decision to decertify. While that appeal was pend‐

ing, the detainees moved for a new trial under Federal Rule

of Civil Procedure 60(b) based on newly discovered evidence,

but the district court denied the motion. The detainees timely

appealed this denial as well, and we consolidated the two ap‐

peals. We now hold that the district court acted well within

its discretion in decertifying the two classes because of the

lack of a common issue of fact or law. Further, the filing of a

Rule 60(b) motion during this interlocutory appeal was inap‐

propriate because there was no final judgment in the case.

Moreover, because the district court took no action that sub‐

stantially altered its decision on the decertification issue, we

cannot treat its disposition of the Rule 60(b) filing as the ap‐

peal from a motion for reconsideration. Accordingly, we af‐

firm the district court’s decision to decertify the class and dis‐

miss the appeal from the court’s disposition of the Rule 60(b)

motion.  

I

The plaintiffs ask us to review two aspects of the proceed‐

ings in the district court. First, they ask that we review the

decision to decertify a class of litigants. Second, they ask that

we review the district court’s disposition of the Rule 60(b) mo‐

tion.  
Nos. 14‐3753 & 15‐1616 3

We first address the district court’s decision to decertify

the classes that it had previously certified. This issue requires,

as our colleague in the district court correctly recognized, that

we apply the decision of the Supreme Court in Wal‐Mart

Stores, Inc. v. Dukes, 564 U.S. 338 (2011), a task we have under‐

taken several times before.1  

A.

This case got underway when a former detainee at the Jail

brought a civil action in the Northern District of Illinois on

January 27, 2009, alleging that Cook County showed deliber‐

ate indifference in its administration of dental care. Five de‐

tainees subsequently joined the lawsuit.2  

On November 10, 2010, the district court ordered that the

case proceed as a class action under Federal Rule of Civil Pro‐

cedure 23(b)(2) for “[a]ll persons presently confined at

the  ...  Jail who are experiencing dental pain and who have

waited more than seven days after making a written request

for treatment of that pain without having been examined by

a dentist.”3 At that time, the court was of the view that the

                                                 

1 See, e.g, Bell v. PNC Bank, Nat’l Ass’n, 800 F.3d 360, 374–75 (7th Cir. 2015);

Chi. Teachers Union, Local No. 1 v. Bd. of Educ. of Chi., 797 F.3d 426, 433 (7th

Cir. 2015); Suchanek v. Sturm Foods, Inc., 764 F.3d 750, 755 (7th Cir. 2014);

Butler v. Sears, Roebuck & Co., 727 F.3d 796, 801 (7th Cir. 2013); Jamie S. v.

Milwaukee Pub. Schs., 668 F.3d 481, 493 (7th Cir. 2012).

2 The originally named plaintiff, John Smentek, is no longer a part of the

case for reasons not disclosed by the record.  

3 R.68 at 15. When certifying a class, a district court must first find that the

four requirements of Federal Rule of Civil Procedure 23(a) have been met:
4 Nos. 14‐3753 & 15‐1616

class members shared a common question based on the “de‐

fendants’ decision to reduce dental services at the jail, partic‐

ularly in reducing the number of dentists employed there to

one.”4The district court concluded in a subsequent order that

the case could also proceed as a class action under Rule

23(b)(3).5

  

After discovery, the detainees moved for preliminary and

permanent injunctions on January 6, 2014. They asked the dis‐

trict court to require the defendants:

1. To screen health service requests com‐

plaining about dental pain on a daily ba‐

sis,

2. To provide a procedure for detainees

complaining about dental pain to obtain

prompt access to pain reduction medi‐

cine (e.g., ibuprofen), and

3. To maintain records of requests for den‐

tal treatment, including dates inmates

                                                 

(1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of repre‐

sentation. Once the district court determines that these four requirements

have been met, the court must then determine whether the class meets the

requirements of one of the categories listed in Federal Rule of Civil Proce‐

dure 23(b). Rule 23(b)(2) concerns classes that seek classwide injunctive

relief. Rule 23(b)(3) concerns classes that present claims where common

questions predominate.  

4 R.68 at 13.

5 The defendants took an interlocutory appeal from this order on grounds

unrelated to this current appeal. We affirmed the district court’s grant of

certification. Smentek v. Dart, 683 F.3d 373, 377 (7th Cir. 2012).  
Nos. 14‐3753 & 15‐1616 5

are scheduled to be examined by dental

personnel, dates inmates are actually ex‐

amined by dental personnel, and docu‐

mentation of cancellation or failure to ap‐

pear for dental treatment or examina‐

tion.[6]

In response, the defendants moved to decertify the classes.

The district court stayed briefing on the motion to decertify

and then held a six‐day bench trial on injunctive relief in June

2014.

The pleadings and the record of the bench trial establish

the following facts. The Jail has a population of approximately

9,500 detainees. The average length of stay at the Jail is fifty‐

seven days, and the median length of stay is twelve days.

Cermak Health Services (“Cermak”), a division of the

Cook County Bureau of Health, provides dental care to the

detainees at the Jail.

In 2008, the Department of Justice (“DOJ”) filed an action

under the Civil Rights of Institutionalized Persons Act

(“CRIPA”), 42 U.S.C. § 1997 et seq., which charged, among

other allegations, that the Jail provided “inadequate medical

care.” United States v. Cook Cty., Ill., 761 F. Supp. 2d 794, 796

(N.D. Ill. 2011).7 Cook County entered into a consent order

with the DOJ in May 2010, agreeing to improve conditions at

                                                 

6 R.236 at 1.

7 The DOJ’s lawsuit is not directly related to this class action, which began

in January 2009. However, this lawsuit provides some important back‐

ground, and many of the reports created pursuant to that lawsuit are rel‐

evant in this dispute.
6 Nos. 14‐3753 & 15‐1616

the Jail and to allow regular monitoring from the federal gov‐

ernment. The consent order mandates that:

a. Cermak shall ensure that inmates receive

adequate dental care, and follow up, in

accordance with generally accepted cor‐

rectional standards of care. Such care

should be provided in a timely manner,

taking into consideration the acuity of

the problem and the inmate’s anticipated

length of stay. Dental care shall not be

limited to extractions.

b. Cermak shall ensure that adequate den‐

tist staffing and hours shall be provided

to avoid unreasonable delays in dental

care.[8]

Prior to the DOJ action, in 2007, Cermak employed only one

dentist, and his sole contribution to the inmates’ dental health

was extractions. As of 2014, however, Cermak employed

seven dentists, two dental hygienists, and seven dental assis‐

tants. The plaintiffs’ expert, Dr. Jay Shulman, described this

level of staffing as “optimum.”9

Upon experiencing dental pain, a detainee can either com‐

plain directly to a nurse or officer, or submit a Health Service

Request form (“HSR”). Under Cermak’s policy, HSRs must be

retrieved daily and reviewed by a registered nurse. When the

                                                 

8 R.71‐2 at 37.

9 R.449 at 146.  
Nos. 14‐3753 & 15‐1616 7

HSR includes a complaint about dental pain, the policy re‐

quires that a qualified health professional examine the de‐

tainee within twenty‐four hours. Despite the policy, Dr. Shul‐

man opined that “face‐to‐face examinations by nursing staff

are not consistent[ly]” performed.10  

HSRs are then provided to the dental clinics. The clinics

categorize the requests as emergency, urgent, priority, or rou‐

tine. Appointments are then scheduled based on the type of

request. A 2014 monitor’s report found that “[t]he current

dental wait time for immediate and urgent HSRs is one to

three days. Routine dental HSR wait time is reported to be

about 30 days. It unfortunately remains true, however, that it

is extremely difficult [if] not impossible to verify the dental

wait time.”11  

After an initial appointment, Cermak may schedule either

a return appointment or an oral surgery at Stroger Hospital.

Detainees who believe their care was inadequate at any stage

in this process can file a grievance with a counselor at the Jail.

Any grievances which concern medical issues are forwarded

to Cermak and then faxed directly to a member of the dental

staff if they involve dental needs.  

Eight detainees testified about their dental treatment on

behalf of the plaintiffs. Because their testimony is necessary

for an understanding of the issues on appeal, we set it forth in

some detail. Jonathan Williams testified that he complained

                                                 

10 Id. at 86.

11 R.384 at 78. The district court took judicial notice of this monitor’s report

after trial. See R.389.
8 Nos. 14‐3753 & 15‐1616

of tooth pain in April 2010 and had a tooth extracted in June

2010. However, he “believe[d] they took out the wrong tooth.

And [he] notified them.”12 According to Mr. Williams, he was

seen by the dental clinics about a dozen more times over the

next three years, where he received fillings and tooth clean‐

ings. Several times, the dentists referred Mr. Williams to

Stroger for oral surgery related to the tooth that should have

been extracted and provided him with pain medication. How‐

ever, Mr. Williams did not undergo surgery. He then submit‐

ted several HSRs related to pain in early 2013, which did not

receive a response. Mr. Williams again was referred to Stroger

in March 2014, and finally had his tooth extracted in May

2014. At the bench trial in early June 2014, Mr. Williams noted

that he had “stitches in [his] mouth right now that just hang[]

down,” and that, despite requests for assistance, “they have‐

nʹt been addressed.”13

Terrance Olden testified that he submitted a series of HSRs

beginning in January 18, 2013, in which he complained of a

toothache and asked that his tooth be extracted. He said that,

at least by January 28, 2013, he “was supposed to be sched‐

uled to get a tooth pulled.”14 Mr. Olden did not get evaluated

at Stroger until June 10 and did not get his tooth extracted un‐

til October 11. Mr. Olden acknowledged that he saw a dentist

ten different times throughout 2013 for different treatments.

Mr. Olden also acknowledged that he was prescribed and

then received pain medication eleven times during that same

                                                 

12 R.449 at 197.

13 Id. at 212.

14 R.451 at 215.
Nos. 14‐3753 & 15‐1616 9

period. However, he testified that there were times, prior to

the extraction, in which he did not have pain medication—

and that he submitted HSRs to that effect.  

Mr. Olden further testified that he submitted an HSR on

January 10, 2014, and on “that same night[,] a nurse came on

the deck to issue medication” and “s[aw] [his] face.”15 He also

submitted an HSR on January 13 and two more on January 15,

but did not receive face‐to‐face evaluations. Mr. Olden had a

dental appointment “sometime at the end of the month of Jan‐

uary” 2014.16 The dentist extracted a tooth, and Mr. Olden tes‐

tified that the pain subsided.17  

John Saiger testified that a piece of his wisdom tooth broke

off on March 23, 2013. He submitted two successive HSRs, but

did not receive a face‐to‐face evaluation. Mr. Saiger then sub‐

mitted a grievance on June 5, noting that he had not received

an evaluation. In response, the Jail scheduled a dental ap‐

pointment for the end of June. Mr. Saiger then moved divi‐

sions, and the appointment was rescheduled. He did not re‐

ceive a dental appointment until September 2013. At that

time, the dentist determined that an extraction would be nec‐

essary and told Mr. Saiger that a return appointment would

be scheduled in a week. However, Mr. Saiger did not return

                                                 

15 Id. at 211.  

16 Id. at 213.  

17 Mr. Olden opted out of the class and filed an individual lawsuit. The

parties in Mr. Olden’s case submitted a stipulation of dismissal. Stipula‐

tion, Olden v. Cook Cty., No. 1:13‐cv‐05283 (N.D. Ill.) (R.66).
10 Nos. 14‐3753 & 15‐1616

to the clinic and have his tooth extracted until January 19,

2014.18  

Kenneth Weatherspoon had a tooth extracted by Cermak

in 2012. He testified that he submitted an HSR on April 4,

2013, complaining of an abscess in his upper right jaw, where

the tooth had been extracted. He did not receive a face‐to‐face

evaluation, but he was seen by a dentist on April 23. The den‐

tist examined Mr. Weatherspoon and referred him to Stroger

“[b]ecause there was nothing that she could do.”19 Mr. Weath‐

erspoon submitted several grievances, but, at the time of the

bench trial in May 2014, he had not had an appointment at

Stroger. He did testify that he had two appointments in the

dental clinic in 2014, one for an examination and one for a fill‐

ing.  

Orlando Allen testified that he had submitted two or three

HSRs complaining of dental pain before he received an ap‐

pointment sometime around May 17, 2013. At that appoint‐

ment, the dentist determined that Mr. Allen’s tooth was too

                                                 

18 Mr. Saiger also opted out of this class and has an individual lawsuit

pending. Saiger v. Dart, No. 13 C 5495, 2015 WL 1433076, at *1 (N.D. Ill.

Mar. 26, 2015); see also Saiger v. Dart, No. 13 C 5495, 2016 WL 98573, at *5

(N.D. Ill. Jan. 8, 2016).

19 R.450 at 116. The parties appear to dispute the reason that the dentist

referred Mr. Weatherspoon to Stroger. Mr. Weatherspoon testified that he

was referred for “oral surgery.” Id. at 118. However, Cook County con‐

tends that he “was referred to Stroger for a pathology consult not an ex‐

traction.” Appellees’ Br. 11. The dentist testified that she could not find

anything wrong with Mr. Weatherspoon’s gums and referred him to

Stroger to see if they could identify something that she had missed. R.452

at 141.  
Nos. 14‐3753 & 15‐1616 11

swollen to be removed at that time. Mr. Allen was pre‐

scribed—and subsequently received—ibuprofen and penicil‐

lin. His tooth was then operated upon a few days later, on

May 23, 2013. Mr. Allen also testified that he experienced a

separate dental issue in October 2013. He submitted an HSR

on October 28, received a face‐to‐face evaluation on October

29, and then visited the dental clinic on October 31.  

Quentin Scott testified that he submitted an HSR com‐

plaining of tooth pain on August 6, 2013. That same day, he

had a face‐to‐face evaluation with a physician’s assistant who

prescribed aspirin and ibuprofen. Mr. Scott then saw a dentist

two days later, on August 8. The dentist referred him to

Stroger and prescribed antibiotics and pain medication.

Mr. Scott did not receive the medication for at least one

month. On November 5, 2013, Mr. Scott visited Stroger and

had x‐rays taken. Mr. Scott did not visit Stroger again until

March 28, 2014, when his teeth were extracted.  

Stanford Thompson testified that he chipped his tooth

during lunch sometime in August 2013 and asked a correc‐

tions officer if he could be sent to a medical unit. The officer

refused and instead told Mr. Thompson to fill out an HSR.

Mr. Thompson submitted an HSR, but he did not receive an

evaluation. A few weeks later, Mr. Thompson visited the dis‐

pensary for an unrelated issue and informed the doctor of his

tooth pain. The doctor prescribed ibuprofen, but Mr. Thomp‐

son never received the medication. Mr. Thompson then filed

a grievance on August 27, 2013. He subsequently saw a den‐

tist in early September, who prescribed medication (which

Mr. Thompson received) and informed him that he had been

“scheduled to get the tooth pulled ... September 19th. But

when she s[aw] the state of it, ... she was going to speed up
12 Nos. 14‐3753 & 15‐1616

the process.”20 Mr. Thompson’s tooth was extracted on or

around September 10, 2013.21  

Jason Knickrehm testified that he submitted an HSR on

October 8, 2013, complaining of a broken tooth and a tooth‐

ache, but did notreceive any response. He submitted a second

HSR and a grievance on October 20. Mr. Knickrehm was then

seen in urgent care the next day and was prescribed medica‐

tion. However, he testified that he never received that medi‐

cation. Mr. Knickrehm was then seen in the dental clinic on

November 21. The dentist determined that a few of Mr. Knick‐

rehm’s teeth would need to be extracted, and expressed an

intention to schedule that appointment within the next week.

However, Mr. Knickrehm did not receive a return appoint‐

ment until December 19. Three days earlier, on December 16,

Mr. Knickrehm submitted a grievance that complained about

his wait. The dentist only extracted one tooth at this appoint‐

ment and then prescribed additional medication. Mr. Knick‐

rehm did not receive that prescription, and the remaining

teeth were not extracted until January 31, 2014.  

                                                 

20 R.452 at 31.  

21 Like Mr. Olden and Mr. Saiger, Mr. Thompson opted out of the class

and filed an individual lawsuit. A district court granted a motion for sum‐

mary judgment in favor of the defendants in that case. Thompson v. Taylor,

No. 13 C 6946, 2016 WL 164340, at *11 (N.D. Ill. Jan. 14, 2016).
Nos. 14‐3753 & 15‐1616 13

After considering this evidence, the district court denied

the motion for a preliminary injunction. The court later decer‐

tified the Rule 23(b)(2) class, modified the Rule 23(b)(3) class,

and denied the motion for a permanent injunction as moot.  

First, the court looked at the commonality requirement of

Rule 23(a)(2). The court explained that the class members’

claims needed to “share some question of law or fact that can

be answered all at once and that the single answer to that

question will resolve a central issue in all class members’

claims.”22 In its original certification, the court found a com‐

mon question concerning the inadequately low number of

dental staff. However, the increase in the number of dentists

eliminated this common question. Further, Cermak had im‐

plemented policies that aligned with national standards.  

The court could not find another common factor among

all of the detainees’ claims, noting that “treatment of dental

pain may fall below the deliberate indifference threshold for

many reasons and at many stages.”23 The court therefore

found that the merits of each plaintiff’s claim of deliberate in‐

difference would necessarily “depend[] on the facts of the in‐

dividual case.”24 The detainees proposed some new common

questions, particularly ones about the Jail’s failure to provide

face‐to‐face evaluations within twenty‐four hours of an HSR

and its failure to provide timely return to clinic appointments.

However, the court found that these questions “raise[d] two

                                                 

22 R.390 at 14–15 (emphasis omitted) (internal quotation marks omitted).

23 Id. at 16.

24 Id. at 17.
14 Nos. 14‐3753 & 15‐1616

separate causes” for a detainee’s pain, which proved that

there was no common issue that could be assessed class‐

wide.25 Further, neither of these allegations pointed to a sys‐

tematically deficient practice. The court concluded that the

commonality requirement was not met.  

The court noted that it “could end its inquiry here” be‐

cause its Rule 23(a)(2) analysis required that both classes be

decertified.26 It nevertheless went on to address, for the sake

of completeness, the Rule 23(b) requirements for each class.

After observing that there was no longer a single identifiable

remedy that could help all class members, the court granted

the defendant’s motion to decertify the Rule 23(b)(2) class.

The court then discussed whether a class could be certified

under Rule 23(b)(3). The court concluded that the Rule

23(b)(3) class could be modified to encompass only those de‐

tainees whose claims arose when the Jail had only one dentist,

because their claims presented a common question of deliber‐

ate indifference. This class’s claims are still pending in the dis‐

trict court.  

Finally, the court explained that, because it decertified the

Rule 23(b)(2) class, the motion for a permanent injunction was

moot. In other words, without a certifiable class, the court saw

no need to consider the underlying merits of the petitioners’

claims. The detainees timely appealed the court’s order.  

                                                 

25 Id. at 17.

26 Id. at 18.
Nos. 14‐3753 & 15‐1616 15

B.

The district court’s foundational reason for decertifying

both classes was that the bench trial had established that the

detainees had not presented “questions of law or fact com‐

mon to the class.” Fed. R. Civ. P. 23(a)(2). We review a district

court’s decision regarding class certification for abuse of dis‐

cretion. Suchanek v. Sturm Foods, Inc., 764 F.3d 750, 755 (7th

Cir. 2014). Of course, “legal determinations made in support

of the decision are reviewed de novo.” Jamie S. v. Milwaukee

Pub. Schs., 668 F.3d 481, 490 (7th Cir. 2012).  

1.

When determining whether to certify a class, a district

court first must find that the requirements of Federal Rule of

Civil Procedure 23(a) are met:  

(1)   the class is so numerous that joinder of

all members is impracticable (numer‐

osity);  

(2)   there are questions of law or fact com‐

mon to the class (commonality);  

(3)   the claims or defenses of the representa‐

tive parties are typical of the claims or

defenses of the class (typicality); and  

(4)   the representative parties will fairly and

adequately protect the interests of the

class (adequacy of representation).  

Fed. R. Civ. P. 23(a) (parentheticals added). Here, the district

court’s focus, and therefore our concern, is the commonality
16 Nos. 14‐3753 & 15‐1616

requirement: whether “there are questions of law or fact com‐

mon to the class.” Id.

The Supreme Court recently clarified the contours of this

commonality requirement. In Wal‐Mart Stores, Inc. v. Dukes,

current and former employees alleged, on behalf of 1.5 million

members of a class, that the company had denied them equal

pay or promotions on the basis of sex, in violation of Title VII

of the Civil Rights Act of 1964, 42 U.S.C. § 2000e‐1 et seq. 564

U.S. at 344–45. The employees did not contend that Wal‐Mart

had an express corporate policy of sex discrimination. In‐

stead, they contended that Wal‐Mart provided local manag‐

ers with undue discretion over pay and promotion, which re‐

sulted in an unlawful disparate impact on female employees.

Id. In their view, Wal‐Mart was liable for these decisions be‐

cause of “its refusal to cabin its managers’ authority” and its

“strong and uniform ‘corporate culture’” that “permit[ted]

bias.” Id. at 345.

The Court determined that the employees’ claims lacked

commonality and therefore decertified the class. The Court

began by observing that “[a]ny competently crafted class

complaint literally raises common ‘questions.’” Id. at 349 (al‐

teration in original) (internal quotation marks omitted). To

demonstrate commonality for the purposes of Rule 23(a)(2),

however, a prospective class must show that its claims “de‐

pend upon a common contention ... of such a nature that it is

capable of classwide resolution—which means that determi‐

nation of its truth or falsity will resolve an issue that is central

to the validity of each one of the claims in one stroke.” Id. at

350. The Court noted that this analysis may “entail some over‐

lap with the merits of the plaintiff’s underlying claim.” Id. at
Nos. 14‐3753 & 15‐1616 17

351. Further, courts are not simply applying a pleading stand‐

ard; instead a prospective class “must be prepared to prove

that there are in fact ... common questions of law or fact.” Id.

at 350 (emphasis in original). However, the Court made clear

that “even a single common question will do.” Id. at 359 (al‐

terations omitted) (internal quotation marks omitted).

Applying this standard to the employees’ claims, the

Court held that the employees had failed to identify a class‐

wide policy or practice which applied to all of the class mem‐

bers. The employees objected to the company’s grant of dis‐

cretion to employers, but they had “not identified a common

mode of exercising discretion that pervades the entire com‐

pany.” Id. at 356. The employees also alleged that a corporate

culture existed, but they had failed to present evidence that

demonstrated that such a culture would be provable at trial

or that this culture caused the alleged disparity. Id. at 353–55.

The Court concluded that the employees “wish[ed] to sue

about literally millions of employment decisions at once.

Without some glue holding the alleged reasons for all those

decisions together, it will be impossible to say that examina‐

tion of all the class members’ claims for relief will produce a

common answer.” Id. at 352 (emphasis omitted).  

In the wake of Wal‐Mart, we have made clear that a pro‐

spective class must articulate at least one common question

that will actually advance all of the class members’ claims. For

instance, when students brought a class action against a pub‐

lic school district, alleging that the district delayed or denied

entry into individualized education programs (“IEPs”) in vi‐

olation of the Individuals with Disabilities Education Act

(“IDEA”), 20 U.S.C. § 1440 et. seq., we held that the students

had not identified a common question:
18 Nos. 14‐3753 & 15‐1616

To illustrate the commonality problem in the

certified class, consider two hypothetical stu‐

dents within the class: one has a disability and

would be eligible for special education but has

never been identified as being disabled nor

gone through the IEP process; another was

identified as disabled and received a timely IEP

meeting, but the child’s parents did not attend

the IEP meeting and were not notified of their

right to do so. Both scenarios involve violations

of the IDEA, but what common question can be

answered that would assist the court in deter‐

mining [the district’s] liability for each? On the

plaintiffs’ theory, that question is something

like this: Did [the district] fulfill its IDEA obli‐

gations to each child? But while that generic

question is surely a part of both children’s

claims, it must be answered separately for each

child based on individualized questions of fact

and law, and the answers are unique to each

child’s particular situation.

Jamie S., 668 F.3d at 498; see also Suchanek, 764 F.3d at 756

(“Where the defendant’s alleged injurious conduct differs

from plaintiff to plaintiff, ... no common answers are likely to

be found.”). We noted that “an illegal policy might provide

the ‘glue’ necessary to litigate otherwise highly individual‐

ized claims as a class,” but that the plaintiffs had not pre‐

sented any proof of such a policy. Jamie S., 668 F.3d at 498 (em‐

phasis omitted) (quoting Wal‐Mart, 564 U.S. at 352); see also

Bolden v. Walsh Constr. Co., 688 F.3d 893, 898 (7th Cir. 2012)

(affirming the decertification of a class where the plaintiffs
Nos. 14‐3753 & 15‐1616 19

challenged a series of individual employers’ decisions but

failed to identify a company‐wide policy).  

By contrast, we have held that consumers who brought

claims of fraudulent representation against a seller of phar‐

maceuticals presented a common question concerning

whether the seller had made fraudulent statements that a

drug had been “‘clinically tested’ and ‘scientifically formu‐

lated.’” Mullins v. Direct Dig., LLC, 795 F.3d 654, 673 (7th Cir.

2015). The seller contended that the consumers were arguing

that the drug was “ineffective” and that this argument would

“depend[] on individual factors such as the severity of the

consumer’s pre‐use medical condition, the consumer’s pat‐

tern of use, and other potentially confounding variables.” Id.

We rejected the seller’s characterization of the plaintiffs’

claims, explaining that their “claims do not rise or fall on

whether individual consumers received health benefits” but

rather “whether [the seller’s] representations were decep‐

tive.” Id. That latter question, we held, could be answered in

one stroke. Id.; see also Bell v. PNC Bank, Nat’l Ass’n, 800 F.3d

360, 374–75 (7th Cir. 2015) (finding a common question where

a group of employees alleged that their employer had an “un‐

official policy” of requiring unpaid overtime hours and sub‐

mitted affidavits from a branch manager and regional man‐

ager alluding to such a policy); Butler v. Sears, Roebuck & Co.,

727 F.3d 796, 798 (7th Cir. 2013) (finding that one class of con‐

sumers presented a common question whether a washer de‐

sign caused mold to accumulate and that another class pre‐

sented a common question whether a washer control unit

caused the machine to shut down).

We also have emphasized that the common question pre‐

sented by a prospective class of plaintiffs need not resolve
20 Nos. 14‐3753 & 15‐1616

every issue in the case. See Suchanek, 764 F.3d at 756 (“Neither

Rule 23 nor any gloss that decided cases have added to it re‐

quires that every question be common. It is routine in class ac‐

tions to have a final phase in which individualized proof be

submitted.” (emphasis in original)). In McReynolds v. Merrill

Lynch, Pierce, Fenner & Smith, Inc., 672 F.3d 482 (7th Cir. 2012),

for example, we found a common question where employers

had brought a classwide challenge to two employment poli‐

cies that potentially had a discriminatory impact. Id. at 488–

89. We observed that “should the claim of disparate impact

prevail in the class‐wide proceeding, hundreds of separate tri‐

als may be necessary to determine which class members were

actually adversely affected ... . But at least it wouldn’t be nec‐

essary in each of those trials to determine whether the chal‐

lenged practices were unlawful.” Id. at 491.  

Similarly, in Chicago Teachers Union, Local No. 1 v. Board of

Education of Chicago, 797 F.3d 426 (7th Cir. 2012), we consid‐

ered whether educators could bring a classwide challenge, on

the basis of race‐based discrimination, to a three‐step review

process that identified “deficient” schools and then replaced

the faculty and staff from those schools. Id. at 429–31. The first

two steps in this process were objective and general, but the

third step arguably was individualized to each school. Id. at

435. We held that “if the plaintiffs allege that the objective cri‐

teria in the first two steps narrowed the pool in such a way as

to have a disparate impact on African‐American teachers (and

indeed they do), then this is the glue that binds the claims to‐

gether without regard to the later, subjective step.” Id. at 436.

In other words, a court could determine whether the first two

steps in the process were discriminatory on a classwide basis,

even if a challenge to the last step in the process could not be
Nos. 14‐3753 & 15‐1616 21

adjudicated classwide.27 In all of these cases, however, the an‐

swer to a common question of law or fact resolved a key ele‐

ment of all of the plaintiffs’ claims.  

Our sister circuits have similarly required plaintiffs to ar‐

ticulate at least one common question that is central to the res‐

olution of all of their claims. See, e.g., Sykes v. Mel S. Harris &

Assocs. LLC, 780 F.3d 70, 84 (2d Cir. 2015) (“Consideration of

[the commonality] requirement obligates a district court to

determine whether plaintiffs have suffered the same injury.”

(internal quotation marks omitted)); DL v. Dist. of Columbia,

713 F.3d 120, 126–27 (D.C. Cir. 2013) (collecting cases and not‐

ing that, “[i]n the absence of identification of a policy or prac‐

tice that affects all members of the class in the manner

Wal‐Mart requires, [a] district court’s analysis is not faithful to

the Court’s interpretation of Rule 23(a) commonality”); M.D.

ex rel. Stukenberg v. Perry, 675 F.3d 832, 843 (5th Cir. 2012)

(“Wal‐Mart requires district courts to specifically delineate

how a class proceeding would allow the court to resolve a dis‐

crete question of law whose determination ‘will resolve an is‐

sue that is central to the validity of each of the [individual

plaintiff’s] claims in one stroke.’” (quoting 564 U.S. at 350)).  

                                                 

27 We went on to hold, however, that the third step in the process did pre‐

sent a common question of fact or law. Even though that step was individ‐

ualized to each school, determinations were still being made by “one de‐

cision‐making body, exercising discretion as one unit.” Chi. Teachers Un‐

ion, 797 F.3d at 440. We contrasted the educators’ challenge to the chal‐

lenges against the decisions of the board with the challenges against the

decisions of “thousands of individual managers” in Wal‐Mart and the de‐

cisions of “countless school district employees” in Jamie S. Id. at 439.
22 Nos. 14‐3753 & 15‐1616

A determination of commonality often requires a precise

understanding of the nature of the plaintiffs’ claims. In Par‐

sons v. Ryan, 754 F.3d 657 (9th Cir. 2014), a case arising in a

context not too different from the one here, our colleagues on

the Ninth Circuit considered whether prison inmates could

bring a series of Eighth Amendment challenges on a class‐

wide basis. The court noted that “commonality cannot be de‐

termined without a precise understanding of the nature of the

underlying claims” presented by the plaintiffs. Id. at 676.

Upon analyzing the claims, the court concluded that “class

members are as one in their exposure to a particular and suf‐

ficiently well‐defined set of allegedly illegal policies and prac‐

tices, rather than only in their advancement of a general

Eighth Amendment legal theory.” Id. at 679. The court noted,

for example, the plaintiffs’ allegations that the prison severely

understaffed medical facilities and had a practice of placing

inmates in isolation with insufficient nutrition. Id. at 679–80.

The court emphasized that the plaintiffs had provided actual

proof of these illegal policies and practices, as opposed to “ut‐

terly threadbare allegations.” Id. at 683. For these reasons, the

court found common questions.  

The governing principle at the heart of our inquiry is

therefore well‐established and regularly applied: a common

question “must be of such a nature that it is capable of class‐

wide resolution” in order to satisfy the requirements of Rule

23(a)(2). Wal‐Mart, 564 U.S. at 350. “The critical point is ‘the

need for conduct common to members of the class.’” Suchanek,

764 F.3d at 756 (emphasis in original) (quoting In re IKO Roof‐

ing Shingle Prods. Liab. Litig., 757 F.3d 599, 602 (7th Cir. 2014)).

The common question (or common questions) need not ad‐

dress every aspect of the plaintiffs’ claims, but it must “drive
Nos. 14‐3753 & 15‐1616 23

the resolution of the litigation.” Wal‐Mart, 564 U.S. at 350 (in‐

ternal quotation marks omitted); see also Chi. Teachers Union,

797 F.3d at 434. It must “resolve an issue that is central to the

validity of each one of the claims in one stroke.” Wal‐Mart, 564

U.S. at 350.

2.

Here, the detainees contend that the district court misread

Wal‐Mart and its progeny. In their view, the district court de‐

manded that the detainees present a single common question

rather than allowing for multiple common questions. In other

words, the detainees argue that the district court imposed a

“ceiling” of a single common question when it should have

imposed a “floor.”28  

Had the district court imposed a cap on the number of

common questions, as the detainees suggest, its decision

could not be justified by the teaching of Wal‐Mart. Cf. In re

IKO, 757 F.3d at 603 (finding commonality where plaintiffs

presented four common questions); Parsons, 754 F.3d at 664,

679 (identifying ten practices or policies that each represented

a common question). We think it clear, however, that the de‐

tainees’ characterization of the district court’s ruling is with‐

out any foundation. Rather, after noting the Rule’s require‐

ment that the district court consider whether the detainees

had presented “questions of law or fact common to the class,”29

                                                 

28 Appellants’ Br. 17.  

29 R.390 at 14 (emphasis added) (quoting Fed. R. Civ. P. 23(a)(2)).
24 Nos. 14‐3753 & 15‐1616

the court concluded that “there is no longer a single question

the answer to which would resolve a significant issue in the

case.”30 This statement hardly means that the district court de‐

certified the class because the detainees presented too many

common questions; the court decertified the class because the

detainees had not presented even one question that could “re‐

solve an issue that is central to the validity of each one of the

claims in one stroke.” Wal‐Mart, 564 U.S. at 350. The district

court correctly understood the holding of Wal‐Mart.  

3.

The detainees further maintain that the district court

abused its discretion by concluding that the detainees had not

presented any common questions of fact or law for the pur‐

poses of Rule 23(a)(2). As the Supreme Court noted, analysis

of this question will “entail some overlap with the merits of

the plaintiff’s underlying claim” of deliberate indifference.

Wal‐Mart, 564 U.S. at 351; see also Parsons, 754 F.3d at 676. We

therefore pause to set forth the standards for deliberate indif‐

ference claims under the Eighth and Fourteenth Amend‐

ments.31  

                                                 

30 Id. at 17.

31 “The Eighth Amendment’s ban on ‘cruel and unusual punishments’ re‐

quires prison officials to take reasonable measures to guarantee the safety

of inmates, including the provision of adequate medical care.” Minix v.

Canarecci, 597 F.3d 824, 830 (7th Cir. 2010). We note that some members of

the class are pretrial detainees and that “the Eighth Amendment applies

only to convicted persons.” Id. at 831. However, in this context, the present
Nos. 14‐3753 & 15‐1616 25

“Deliberate indifference occurs when a defendant realizes

that a substantial risk of serious harm to the prisoner exists,

but” intentionally or recklessly “disregards that risk.” Berry v.

Peterman, 604 F.3d 435, 440 (7th Cir. 2010); see also Estelle v.

Gamble, 429 U.S. 97, 106 (1976). We have identified “two dis‐

tinct categories of deliberate indifference claims” pertaining

to medical treatment. Cleveland‐Perdue v. Brutsche, 881 F.2d

427, 430 (7th Cir. 1989). First, there are “claims of isolated in‐

stances of indifference to a particular inmate’s medical

needs.” Id.; see also Berry, 604 F.3d at 440. For these claims, a

plaintiff must show that he suffered from an objectively seri‐

ous medical condition32 and that the defendant was deliber‐

ately indifferent to that condition. Perez v. Fenoglio, 792 F.3d

768, 776 (7th Cir. 2015); see also Arnett v. Webster, 658 F.3d 742,

750–51 (7th Cir. 2011). Second, there are “claims that systemic

deficiencies at the prison’s health care facility rendered the

medical treatment constitutionally inadequate for all in‐

mates.” Cleveland‐Perdue, 881 F.2d at 430–31. For these claims,

plaintiffs must demonstrate that “there are such systemic and

gross deficiencies in staffing, facilities, equipment, or proce‐

dures that the inmate population is effectively denied access

to adequate medical care.” Wellman v. Faulkner, 715 F.2d 269,

                                                 

case law holds that “pretrial detainees ... are entitled to the same basic

protections under the Fourteenth Amendment’s due process clause. Ac‐

cordingly, we apply the same legal standards to deliberate indifference

claims brought under either the Eighth or Fourteenth Amendment.” Id.;

see also Smentek, 683 F.3d at 374. But see Kingsley v. Hendrickson, 135 S. Ct.

2466, 2475 (2015) (holding that there are different standards for sentenced

prisoners and pretrial detainees in the case of excessive force claims).

32 We have held that tooth decay and similarly severe dental pain “can

constitute an objectively serious medical condition.” Berry v. Peterman, 604

F.3d 435, 440 (7th Cir. 2010).
26 Nos. 14‐3753 & 15‐1616

272 (7th Cir. 1983) (quoting Ramos v. Lamm, 639 F.2d 559, 575

(10th Cir. 1980)).  

After hearing the evidence at trial, the district court took

the view that the detainees’ claims were best characterized as

“claims of isolated instances of indifference to a particular in‐

mate’s medical needs.” Cleveland‐Perdue, 881 F.2d at 430.

There certainly is a substantial basis for such a determination.

Some of the detainees contend that they did not receive a

prompt response to their HSR but otherwise received timely

and responsive treatment. Others contend that they received

an evaluation within a day of submitting their HSR but they

then experienced a significant delay before a return appoint‐

ment. Still others allege that they saw a dentist and were pre‐

scribed medicine but did not receive the prescribed medicine.

Just like the students in Jamie S., each of whom encountered

unique difficulties caused by different actors as they under‐

went the IEP process in their schools, there is no common

question here that addresses all of these detainees’ claims at

once. See 668 F.3d at 498. The detainees each present a differ‐

ent situation that involved a different type of dental pain, took

place at a different time, involved different medical profes‐

sionals and prison staff, and concerned a different alleged de‐

ficiency in the treatment process. Cf. Chi. Teachers Union, 797

F.3d at 439–40 (finding commonality where a single deci‐

sion‐making body enforced a general, albeit discretionary,

policy).  

The detainees nevertheless ask us to focus especially on

two questions of fact that they believe to be “common” among

all their claims of deliberate indifference:  

(1) Does the Jail’s continuing failure to re‐

quire a face‐to‐face evaluation from a
Nos. 14‐3753 & 15‐1616 27

registered nurse within 24 hours of a

written complaint of dental pain result in

gratuitous pain?

(2) Does the failure of the Jail to provide

timely “return to clinic” appointments

result in preventable and gratuitous

pain?[33]

Both of these questions concern delays, albeit different sorts

of delays, in medical treatment. We previously have held that

when assessing deliberate indifference claims, a delay in med‐

ical treatment “is not a factor that is either always, or never,

significant. Instead, the length of delay that is tolerable de‐

pends on the seriousness of the condition and the ease of

providing treatment.” McGowan v. Hulick, 612 F.3d 636, 640

(7th Cir. 2010); see also Kress v. CCA of Tenn., LLC, 694 F.3d 890,

893 (7th Cir. 2012) (approving a district court’s observation

that “the level of medical care required ... will vary depend‐

ing on each inmate’s circumstances”). The more significant

the dental pain, the more immediate is the need for treatment.

In determining whether such complaints can be characterized

appropriately as presenting a common question susceptible

to class resolution, careful examination of the context is cru‐

cial.

One of our earlier cases illustrates this point. In Harper v.

Sheriff of Cook County, 581 F.3d 511 (7th Cir. 2009), we had to

consider whether a class bringing Fourth Amendment claims

presented common questions about the length of detention.

                                                 

33 Appellants’ Br. 23; see also R.390 at 17 (district court identifying these

two proposed common questions).  
28 Nos. 14‐3753 & 15‐1616

Id. at 515. We explained that the “constitutionality of [any] de‐

tention depends on whether the length of the delay ... was

reasonable in any given case.” Id. As a result, “[l]iability, to

say nothing of damages, would need to be determined on an

individual basis.” Id.; see also Portis v. City of Chicago, Ill., 613

F.3d 702, 705 (7th Cir. 2010) (“Because reasonableness is a

standard rather than a rule, and because one detainee’s cir‐

cumstances differ from another’s, ... class certification is in‐

appropriate.”).34 In the same way, the constitutionality of a

wait for medical treatment will depend on a variety of indi‐

vidual circumstances. See McGowan, 612 F.3d at 640. These

questions can only be answered by looking at the unique facts

of each detainee’s case. In light of their contextual nature, the

district court did not abuse its discretion in concluding that

the questions the detainees present about the length of delay

in medical treatment are incapable of being solved on a class‐

wide basis. See Wal‐Mart, 564 U.S. at 350.

A consideration of each of the detainees’ proposed ques‐

tions makes clear the hurdle that cannot be overcome. First,

the detainees claim that the Jail fails to provide a face‐to‐face

evaluation from a registered nurse within twenty‐four hours

of a complaint. However, simply establishing that detainees

at the Jail consistently wait more than twenty‐four hours does

not advance materially any individual’s claim of deliberate

                                                 

34 Both Harper v. Sheriff of Cook Cty., 581 F.3d 511, 515 (7th Cir. 2009), and

Portis v. City of Chicago, Ill., 613 F.3d 702, 704 (7th Cir. 2010) concerned

whether common issues predominated under Rule 23(b)(3), and not

whether the class had failed to present a single common issue under Rule

23(a)(2). However, both cases made clear that a question about the length

of detention could not be common to the class.
Nos. 14‐3753 & 15‐1616 29

indifference.35 See Wal‐Mart, 564 U.S. at 350 (asking whether

the question “drive[s] the resolution of the litigation” (inter‐

nal quotation marks omitted)). Again, an earlier Fourth

Amendment case illustrates the point well. When plaintiffs

brought a class action challenging any detention following a

custodial arrest that lasted more than two hours, we held that

the class should be decertified. Portis, 613 F.3d at 703–04. We

explained that, “[g]iven the contextual nature of analysis un‐

der the fourth amendment,” imposing “an inflexible two‐

hour rule” would be “impossible.” Id. at 704. Just as a rigid

two‐hour rule could not be imposed under the Fourth

Amendment, a rigid twenty‐four‐hour rule for dental care

cannot be imposed under the Eighth Amendment. In both ar‐

eas of law, the analysis is similarly contextual.  

The detainees also claim that the question whether the Jail

provides timely “return to clinic” appointments is common to

the class. However, to determine whether a return visit is

“timely,” a court must look at evidence that will be unique to

each individual class member. See McGowan, 612 F.3d at 640.

As the district court correctly perceived, the differing testimo‐

nies at the bench trial show that this inquiry would be partic‐

ularly individualized in this case. John Saiger did not receive

a return appointment to extract his broken wisdom tooth until

                                                 

35 Indeed, the evidence suggests that the wait time before a face‐to‐face

evaluation varied. Quentin Scott testified that he saw a physician’s assis‐

tant, who was able to provide aspirin and ibuprofen, on the same day he

submitted an HSR. Orlando Allen similarly testified that he received an

evaluation from a registered nurse within twenty‐four hours of submit‐

ting an HSR in October 2013. However, he also testified that he submitted

two or three other HSRs earlier that year without receiving any evaluation.  
30 Nos. 14‐3753 & 15‐1616

five months after his first appointment. Alternatively, Or‐

lando Allen received a return appointment within a few days

of his first appointment. Stanford Thompson similarly testi‐

fied that his return appointment occurred a week after ini‐

tially seeing a dentist for tooth pain. Any or all of these indi‐

viduals may have experienced deliberate indifference. See

Smith v. Knox Cty. Jail, 666 F.3d 1037, 1040 (7th Cir. 2012)

(“Even a few days’ delay in addressing a severely painful but

readily treatable condition suffices to state a claim of deliber‐

ate indifference.”). However, the detainees do not explain

how the court can define a “timely” return visit without look‐

ing at the circumstances of each individual case. The district

court reasonably concluded that it could not resolve a ques‐

tion about “timely visits” in a classwide manner.  

As noted earlier, we also recognize a second category of

deliberate indifference claims alleging “that systemic defi‐

ciencies at the prison’s health care facility rendered the medi‐

cal treatment constitutionally inadequate for all inmates.”

Cleveland‐Perdue, 881 F.2d at 430–31. In Wellman v. Faulkner,

715 F.2d 269 (7th Cir. 1983), for example, we found systemic

deficiencies at a prison where two out of three physicians

could not communicate effectively with patients because of a

language barrier, a staff psychiatrist position had been un‐

filled for two years, prisoners had been denied vital surgeries

for two to five years, and medical supplies were being reused

because they had not been restocked. Id. at 272–74. Similarly,

in Cleveland‐Perdue v. Brutsche, we held that a plaintiff stated

a claim of systemic deliberate indifference where a prison al‐

legedly had failed to make any changes to its procedures fol‐

lowing the death of an inmate who had been prescribed med‐

icine over the phone. 881 F.2d at 428–31. In contrast, the plain‐

tiff in Holmes v. Sheahan, 930 F.2d 1196 (7th Cir. 1991), who
Nos. 14‐3753 & 15‐1616 31

only presented evidence about the medical care he himself re‐

ceived, did not provide evidence of a widespread practice,

and therefore failed to present a claim of systemic deliberate

indifference. Id. at 1202 n.4; see also Gutierrez v. Peters, 111 F.3d

1364, 1375 n.10 (7th Cir. 1997) (determining that, “in light of

[a plaintiff’s] overall treatment, the few incidents in which

[the plaintiff] suffered delays in his treatment simply fail to

reveal a ‘pattern of conduct’ evidencing deliberate indiffer‐

ence” as articulated in Wellman).

If plaintiffs can present classwide evidence that a prison is

engaging in a policy or practice which rises to the level of a

systemic indifference, then we can identify “conduct common

to members of the class” which advances the litigation.

Suchanek, 764 F.3d at 756 (emphasis omitted) (internal quota‐

tion marks omitted); see also Jamie S., 668 F.3d at 498 (“[A]n

illegal policy might provide the ‘glue’ necessary to litigate

otherwise highly individualized claims as a class.” (emphasis

omitted)). Indeed, the Ninth Circuit in Parsons identified as a

common question whether there was a systemic “failure to

provide timely access to medically necessary specialty care.”

754 F.3d at 664, 679 (internal quotation marks omitted). The

court explained that where “variations undoubtedly exist”

between each inmate’s treatment, the claim must be that a

prison “regularly provides a level of [care] that is so inade‐

quate that it exposes any inmate ... to a substantial risk of se‐

rious harm.” Id. at 680 (emphasis in original). Further, the

court did “not hold that utterly threadbare allegations that a

group is exposed to illegal policies and practices are enough

to confer commonality.” Id. at 683.  

As Parsons suggests, a class action probably could be

brought where plaintiffs presented some evidence that a
32 Nos. 14‐3753 & 15‐1616

prison had a policy that regularly and systemically impeded

timely examinations. See Portis, 613 F.3d at 705 (discussing the

potential for common issues where “the class sought to estab‐

lish that a jurisdiction had adopted a policy of deliberate de‐

lay”). Similarly, a class action probably could be brought

where evidence suggested that a prison had such a consistent

pattern of egregious delays in medical treatment that a trier

of fact might infer a systemic unconstitutional practice. See

Holmes, 930 F.2d at 1202 n.4 (discussing how a pattern of un‐

constitutional conduct can indicate “an entrenched practice

that has the effective force of a formal policy”).

Here, however, the district court correctly observed that

the detainees’ “questions do not point to the type of ‘system‐

atic and gross deficienc[y]’ ... that would lead to a finding that

all detainees are effectively denied treatment.”36 A twenty‐

four hour delay in responding to treatment does not automat‐

ically constitute deliberate indifference in violation of the

Eighth and Fourteenth Amendments, and the detainees do

not allege that the Jail has a specific policy that directly causes

a wait following an HSR. Some of the alleged delays in return

to clinic appointments “may constitute deliberate indifference

depending on the facts of the individual case,”37 but the de‐

tainees do not present a pattern of egregious delays across the

entire class. See Gutierrez, 111 F.3d at 1375 n.10.38 Just as in

                                                 

36 R.390 at 17 (quoting Wellman v. Faulkner, 715 F.2d 269, 272 (7th Cir.

1983)).  

37 Id.

38 The detainees suggest that any delays in return appointments are the

result of one policy: Cermak’s decision to vest a scheduling department
Nos. 14‐3753 & 15‐1616 33

Wal‐Mart, proof of a systemic practice which could tie all the

claims together is “absent here.” 564 U.S. at 353; see also Jamie

S., 668 F.3d at 498 (vacating a class‐certification order because

there was no evidence of a common illegal policy); Bell, 800

F.3d at 375 (holding that a prospective class had presented a

common issue of fact when it “offered evidence” of “a

broader company policy”). For these reasons, the detainees’

proposed questions do not address a gross and systemic defi‐

ciency that applies to the entire class. Instead, the detainees

bring a series of individual claims of deliberate indifference.

See Cleveland‐Perdue, 881 F.2d at 430.  

The detainees still have, of course, legal avenues in which

to bring their claims of deliberate indifference. First, the dis‐

trict court did identify one common policy that might consti‐

tute systemic deliberate indifference: Cook County’s decision

                                                 

with the primary authority to schedule appointments rather than the den‐

tists themselves. However, that policy is not central to the claims of de‐

tainees who did not experience a delay in return appointments and allege

that their treatment was deficient for other reasons. More importantly, the

detainees do not explain why a clerk in the scheduling department would

cause longer waits between appointments than a dentist, much less how

the decision to vest authority in a clerk was so misguided that it consti‐

tutes deliberate indifference in violation of the Constitution. In fact, a den‐

tist who disliked the policy testified at the bench trial that “it runs more

efficient if scheduling does the appointments. It has us more—doing

more—having more time to do procedures than scheduling patients.”

R.453 at 83. The detainees have not invited our attention to any evidence

which could prove that this policy is the cause of a delay in treatment. See

Wal‐Mart, 564 U.S. at 353–55 (refusing to grant class certification on the

basis of a “strong corporate culture” because the plaintiffs failed to present

any proof that adverse employment actions resulted from this corporate

culture).
34 Nos. 14‐3753 & 15‐1616

to staff the Jail with only one dentist.39 That policy ended at

some time before the district court issued its order, so the

court certified a narrower class of detainees who received in‐

adequate dental care before the Jail hired more dentists. That

action is ongoing. Further, detainees may bring individual

claims of deliberate indifference based on their own unique

circumstances. We express no opinion on the potential merits

of the pending class action or on any individual detainee’s

claims. Rather, we simply hold that the district court did not

abuse its discretion when it concluded, on the record before

it, that the detainees’ claims do not present common issues of

law or fact. We therefore affirm the district court’s decision to

decertify the class.  

II

While the appeal from the decertification of the classes

and the consequent denial of request for injunctive relief was

pending in this court, the detainees filed a motion in the dis‐

trict court requesting relief under Federal Rule of Civil Proce‐

dure 60(b). They maintained that new evidence established

that there were common questions of law and fact and that

class certification was possible. Invoking our Seventh Circuit

Rule 57, the detainees asked that the district court indicate

whether, on the basis of this information, it would be inclined

to grant relief if we were to vacate the extant orders and re‐

                                                 

39 The Ninth Circuit has recognized that “a policy and practice of severe

under‐staffing” presents a common question that can be addressed on a

classwide basis. Parsons v. Ryan, 754 F.3d 657, 679 (9th Cir. 2014).  
Nos. 14‐3753 & 15‐1616 35

mand the case for further proceedings. The district court de‐

nied the motion, stating that it was not inclined to revise its

order decertifying the class. The detainees now appeal the de‐

nial of their Rule 60(b) motion.  

The detainees brought this matter to the district court’s at‐

tention through a motion under Federal Rule of Civil Proce‐

dure 60(b). That rule is, “by its terms[,] limited to ‘final’ judg‐

ments or orders” and is “inapplicable to interlocutory or‐

ders.” Santamarina v. Sears, Roebuck & Co., 466 F.3d 570, 571

(7th Cir. 2006); see also Mintz v. Caterpillar Inc., 788 F.3d 673,

679 (7th Cir. 2015); Adams v. City of Chicago, 135 F.3d 1150, 1153

(7th Cir. 1998). Here, because the district court had not en‐

tered a final judgment, the detainees’ filing was simply a re‐

quest for relief from an interlocutory order decertifying a

class. See Mullins, 795 F.3d at 657 (describing an order grant‐

ing or denying certification as interlocutory). The detainees

therefore were not permitted to file a Rule 60(b) motion.  

That said, the detainees, although unable to employ Rule

60(b) as a vehicle, were not altogether barred from presenting

new evidence to the district court on the certification question

in what amounted to a motion to reconsider the decertifica‐

tion of the class, see Gary v. Sheahan, 188 F.3d 891, 893 (7th Cir.

1999), or an amended motion to certify the class, see McReyn‐

olds, 672 F.3d at 486; Fed. R. Civ. P. 23(c)(1)(C) (“An order that

grants or denies class certification may be altered or amended

before final judgment.”). For a period of time, there appeared

to be significant tension in our case law as to when the dispo‐

sition of such a motion is appealable to this court. Gary placed

severe restrictions on such an appeal, permitting one only if

the district court “materially alters the [original] decision.”
36 Nos. 14‐3753 & 15‐1616

188 F.3d at 893. McReynolds viewed the matter quite differ‐

ently and saw this court as having far more flexibility in de‐

termining whether an appeal ought to be taken. 672 F.3d at

486–87. It suggested that an appeal ought to be permitted

whenever, “as a result of new law or newly learned facts, the

[initial] denial of certification was erroneous.” Id. at 486. This

standard, the court said, is necessary to permit the parties to

avoid endless years of unnecessary litigation and to put the

case on a path to speedy resolution. Id. It appears that this ten‐

sion has been assuaged substantially and in all likelihood

eliminated by our most recent decisions in Driver v. AppleIlli‐

nois, LLC, 739 F.3d 1073, 1076 (7th Cir. 2014) and Matz v.

Household International Tax Reduction Investment Plan, 687 F.3d

824 (7th Cir. 2012). It is clear now that, in concert with our

sister circuits, we will allow an appeal only when the district

court has issued an order “materially altering a previous or‐

der granting or denying class certification ... even if it doesn’t

alter the previous order to the extent of changing a grant into

a denial or a denial into a grant.” Matz, 687 F.3d. at 826.

In this case, allowing appellate consideration of the mat‐

ters raised in the detainees’ motion filed under Rule 60(b)

would not foster, but would work to the detriment of, the pol‐

icy concerns that we have articulated in our cases.

40 Here, the

                                                 

40 We previously have construed Rule 60(b) orders as reconsiderations of

interlocutory orders and allowed for appellate consideration. For exam‐

ple, we construed a district court’s denial of a Rule 60(b) motion after a

grant of summary judgment as a reconsideration of the prior summary

judgment ruling. Mintz v. Caterpillar Inc., 788 F.3d 673, 679 (7th Cir. 2015).

Similarly, we construed a district court’s order stating, pursuant to Circuit
Nos. 14‐3753 & 15‐1616 37

district court made no ruling that altered, in any meaningful

sense, its earlier decision. Indeed, the court pointedly said

that, until we ruled on its earlier decision, any definitive deci‐

sion on the matters raised in the subsequent motion would be

premature. Moreover, the court noted that the detainees’ own

approach to discovery might supply a basis for its decision

whether to reconsider the decertification.41

                                                 

Rule 57, that it was disinclined to change its ruling denying injunctive re‐

lief, as “the equivalent of the initiation of a new motion for preliminary

injunction.” Adams v. City of Chicago, 135 F.3d 1150, 1154 (7th Cir. 1998).

In those cases, however, unique circumstances compelled us to con‐

strue the orders in this manner. In Adams, the plaintiffs filed a Rule 60(b)

motion after we directed them to follow the procedure laid out in Circuit

Rule 57. 135 F.3d at 1153–54. We noted that “we share[d] the responsibility

for any confusion resulting from this patchwork process” and declared

that “[h]enceforth, the Circuit Rule 57 procedure should be used exclu‐

sively for final judgments.” Id. at 1154. In Mintz, we made an exception

where “despite denying what it erroneously treated as a Rule 60(b) mo‐

tion,” the district court “did review the belated submission and decided

that it would not affect the grant of summary judgment.” 788 F.3d at 679.

In other words, the district court’s analysis of the Rule 60(b) motion was

indistinguishable from an analysis of a summary judgment motion. The

order could fairly be construed as one concerning summary judgment

without any change in the analysis. In this case, however, the district court

engaged in a different review than the one we will consider.

41 See R.427 at 10 (“Now, a lot of the discovery problems were of your own

making. ... So my view is let’s have the Court of Appeals take a look at

this case and see what they say. ... I’m not—certainly not inclined to tell

the Court of Appeals that I’m inclined to vacate what I’ve done before.”).

In their brief in this court, the detainees also argue that there was an im‐

permissible “asymmetry” to the discovery allowed each party. This argu‐

ment is presented to give context to the detainees’ arguments on the sub‐
38 Nos. 14‐3753 & 15‐1616

Conclusion

The district court did not abuse its discretion when it de‐

termined that the evidence produced at trial required, in ac‐

cordance with the Supreme Court’s holding in Wal‐Mart, the

decertification of the classes that it had certified previously.

Accordingly, the district court’s judgment in Case Number

14‐3753 is AFFIRMED. Further, for the reasons stated above,

the appeal in Case Number 15‐1616 is DISMISSED. The de‐

fendants may recover their costs in this court.  

                                                 

stantive merits of its Rule 60(b) motion. For the reasons we have ex‐

plained, any consideration of these matters on appeal would be, at best,

premature.