## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 18 2004 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MARK SHOOK; and DENNIS JONES, on behalf of themselves and all others similarly situated,

Plaintiffs-Appellants, SHIRLEN MOSBY; and JAMES VAUGHAN, Plaintiffs-Intervenors- Appellants,

v. No. 03-1397 EL PASO COUNTY, BOARD OF COUNTY COMMISSIONERS OF EL PASO COUNTY, and JOHN WESLEY ANDERSON, in his capacity as Sheriff of El Paso County,

Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE COLORADO (D.C. NO. 02-M-651-MJW)

David C. Fathi, American Civil Liberties Union, Was hington, D.C. (with Mark Silverstein, A.C.L.U. Foundation of Colorado, and T homas S. Nichols, Davis Graham & Stubbs LLP, Denver, Colorado, on briefs) f or Plaintiffs-Appellants and Plaintiffs-Intervenors-Appellants.2

Gordon L. Vaughan, Vaughan & DeMuro, Colorado Sprin gs, Colorado (with Sara Ludke Cook, Vaughan & DeMuro, Colorado Springs, Col orado, and Jay A. Lauer, Assistant County Attorney, El Paso County, Colorado , on the brief) for Defendants-Appellees.

Before TACHA , BARRETT , and TYMKOVICH , Circuit Judges.

TYMKOVICH , Circuit Judge.

This case involves the unsuccessful effort by four former state prisoners to certify a class action challenging their lack of ac cess to mental health care while incarcerated in the El Paso County, Colorado Jail. The district court denied them class certification and dismissed the suit based on its conclusion that under the Prisoner Litigation Reform Act the relief the plain tiffs sought was “beyond the competence and the jurisdiction of [the] court.” Shook v. Bd. of County Comm’rs of County of El Paso , 216 F.R.D. 644, 648 (D. Colo. 2003). The plaintiffs now appeal, arguing that the distric t court applied the wrong standard in denying class certification. We take j urisdiction under 28 U.S.C. § 1291 (2000) and, agreeing with the prisoners, reverse and remand for further proceedings.
I. BACKGROUND A. The Jail The El Paso County Jail is located in Colorado Spri ngs, Colorado. The Jail1 Unless otherwise indicated, throughout this opinio n the term “plaintiffs”or

“prisoners” refers both to plaintiffs Mark Shook an d Dennis Jones and plaintiffintervenors Shirlen Mosby and James Vaughan. 3 houses both men and women, including recent arreste es, persons awaiting trial, and persons convicted and sentenced to terms of two years or less under state law. Each of the four named plaintiffs 1 in this suit was incarcerated in the Jail sometime between 2001 and 2002, either as a pretria l detainee or as an inmate. B. The Class Action Complaint On April 2, 2002, the prisoners filed a class actio n complaint under 42 U.S.C. § 1983 seeking injunctive and declaratory re lief against the El Paso County Board of County Commissioners and the Sherif f of El Paso County in his official capacity. They sought to certify a class of “all persons with serious mental health needs who are now, or in the future w ill be, confined in the El Paso County Jail.” App. at 13. In their complaint, the named plaintiffs allege that Jail officials have violated the prisoners’ constitutional rights by ac ting with deliberate indifference to their mental health needs contrary to the Eighth Amendment’s prohibition against cruel and unusual punishment and the Fourte enth Amendment’s prohibition against punishment of pretrial detainee s. In particular, the plaintiffs allege that Jail personnel subjected them to (1) in adequate housing and overcrowding; (2) inadequate inpatient care; (3) in adequate mental health4

facilities for women inmates; (4) improper treatment through the use of special detention cells, restraints, and pepper spray; (5) inadequate supervision to prevent self-harm or suicide; (6) inadequate methods of dis tributing medication; and (7) inadequate mental health staffing. They also assert that El Paso’s management of the Jail has created a substantial risk of future h arm to class members. The individual plaintiffs each assert slightly diff erent factual allegations to support their claims of deliberate indifference. T he first, Mark Shook, maintains that he has been receiving psychiatric care since c hildhood for his conditions of Asperberger’s Syndrome (a form of autism) and bipol ar disorder. Before he came to the Jail in fall 2001, he regularly took anti-ps ychotic drugs prescribed by his psychiatrist to control his symptoms. He alleges that after his arrival at the Jail, he had no access to doctors or medications for thre e weeks. When Jail officials finally allowed him to see a doctor, the doctor ref used to prescribe his regular medications because they were not on the Jail’s lis t of approved medications. Plaintiff Dennis Jones asserts that he is bipolar, suffers from depression and anxiety, and has considered suicide. Prior to entering the Jail in September 2001 he claims a prescription of a combination of v arious drugs successfully controlled his symptoms. Jones claims that Jail of ficials denied him access to any medications for nearly a month after his incarcerat ion, and when he finally obtained a prescription, he received only an insuff icient dose of one of the drugs5

he needed. In addition, he alleges that Jail staff who monitored the levels of his medication through blood sample testing took the samples too soon or too long after he received his medication for the tests to b e accurate. Plaintiff-intervenor Shirlen Mosby alleges that she is bipolar and has experienced numerous attacks of anxiety, depression , feelings of hopelessness, and suicidal thoughts. She asserts that after her incarceration began in April 2002, Jail officials improperly placed her in speci al detention cells and Jail staff belittled her condition. She also maintains that b ecause of inadequate supervision she was able to attempt suicide three times while h oused in the Jail. Finally, plaintiff-intervenor James Vaughan asserts that he is bipolar and has nearly continuous depression and anxiety. He c laims that he had inadequate access to psychiatrists during his incarceration as a pretrial detainee beginning in May 2002. He also claims that he was deprived of m edication for several days after he arrived at the Jail and never received the blood tests necessary to monitor the medication he finally did receive. The plaintiffs allege that their lack of access to adequate mental health care is life-threatening. For example, they claim that the Jail officials’ deliberate indifference to prisoners’ mental health needs has led to the deaths of at least four prisoners and resulted in injuries to others. C. The Procedural History6

El Paso moved to dismiss the class action complaint , arguing that each class member was required to fully exhaust his or h er administrative remedies under the Prisoner Litigation Reform Act. 42 U.S.C . § 1997e(a) (2000) (“PLRA”). El Paso asserted that because only the c lass representatives had exhausted their remedies, the class could not be ce rtified. On its own motion, the district court requested supplemental briefing fromboth parties regarding the impact of the PLRA’s remedial provisions on the iss ue of certifying a class seeking prospective relief. App. at 62 (citing 18 U.S.C. § 3626 (2000)). After oral argument, the district court issued an o rder denying both the defendants’ motion for dismissal and the plaintiffs ’ motion for class certification. Although the district court noted that the plaintif fs had each alleged facts sufficient to show that El Paso was deliberately in different to their mental health needs in violation of the Eighth Amendment, see Shook, 216 F.R.D. at 646 (citing Estelle v. Gamble , 429 U.S. 97 (1976)), the court ultimately conclud ed that the PLRA precluded class certification because the “bre adth [of relief sought made] the proposed class action not manageable with [the] court’s limited jurisdiction.” Id. at 648. In light of its ruling, the court granted the plain tiffs thirty days in which to file an amended complaint for individual relief. Id. at 649. By this time, however, none of the plaintiffs remained in the Jai l and therefore they no longer7

had standing to seek individual relief. The distri ct court accordingly dismissed the action. App. at 140–41. The prisoners now appeal the district court’s denia l of class certification.
II. ANALYSIS A. Standard of Review Whether the district court applied the correct lega l standard in its decision to grant or deny class certification is reviewed de novo. Thiessen v. General Electric Capital Corp ., 267 F.3d 1095, 1105 (10th Cir. 2001). “When the district court has applied the proper standard in deciding whether to certify a class, we may reverse that decision only for abuse of discret ion.” Adamson v. Bowen , 855 F.2d 668, 675 (10th Cir. 1988). However, “that dis cretion must be exercised within the framework of rule 23.” Stirman v. Exxon Corp. , 280 F.3d 554, 561 (5th Cir. 2002). An abuse of discretion occurs whe re the district court misapplies the Rule 23 factors in deciding whether class certi fication is appropriate. See id. ; see also J.B. v. Valdez , 186 F.3d 1280, 1287 (10th Cir. 1999) (“There is n o abuse of discretion when the trial court applies the corr ect criteria [under Rule 23] to the facts of the case.”) (citations omitted). We r eview de novo whether the district court correctly determined that the PLRA applied to the Rule 23 class certification analysis. See Dang v. UNUM Life Ins. Co. of Am. , 175 F.3d 1186, 1189 (10th Cir. 1999) (“We review the district court's decisions on questions of8

law . . . de novo.”). Although the party seeking to certify a class bears the burden of proving that all the requirements of Rule 23 are met, see Reed v. Bowen , 849 F.2d 1307, 1309 (10th Cir. 1988), the district court must enga ge in its own “rigorous analysis” of whether “the prerequisites of Rule 23( a) have been satisfied.” Gen. Tel. Co. of the S.W. v. Falcon , 457 U.S. 147, 161 (1982). In doing so, the court must accept the substantive allegations of the comp laint as true, J.B. , 186 F.3d at 1290 n.7; see also Eisen v. Carlisle & Jacquelin , 417 U.S. 156, 178 (1974), although it “need not blindly rely on conclusory al legations which parrot Rule 23” and “may consider the legal and factual issues pres ented by plaintiff’s complaints.” J.B ., 186 F.3d at 1290, n.7 (quoting 2 Herbert Newberg & Alba Conte, Newberg on Class Actions § 7.26 (3d ed. 1992)). B. The District Court’s Order We now turn to the district court’s denial of class certification. Rule 23(a) requires an analysis of four elements which are pre conditions to class certification: numerosity, commonality, typicality, and adequacy of the named parties to represent the class. Fed. R. Civ. P. 23 (a). The court must then look to the category of class action under Rule 23(b) for a dditional prerequisites involving certification of a class. In this case, the district court appropriately bega n its analysis by referring9

to Rule 23(a)’s four prerequisites to class certifi cation. Instead of applying Rule 23(a)’s framework to the facts alleged, howeve r, it moved to other “considerations controlling the motion for class ce rtification,” including whether the named plaintiffs and interveners have s tanding to assert the claims made on behalf of the putative class, wh ether the members of the class can be identified, whether the class a llegations are broader than the constitutional claim, whether the putative class is manageable and, whether the court has the authorityto order the prospective remedy requested. Shook, 216 F.R.D. at 647. The court’s evaluation of the se factors turned primarily on whether the prisoners could in fact sh ow an Eighth Amendment violation and whether their allegations, if proven, would entitle them to the relief they requested. The court did not address Rule 23( b)(2). In evaluating whether the prisoners could allege anEighth Amendment violation, the court reached two conclusions. It f irst determined that because the Jail’s population was “inherently fluid,” the plain tiffs could only prove that the defendants were deliberately indifferent to the cla ss’s needs if the Jail used “an intake diagnostic procedure to determine persons having serious mental health needs.” Id. at 648. However, it concluded that intake screen ing was not constitutionally required and therefore could not f orm the basis for a constitutional violation. The court then determined that the prisoners’ compl aint was really an attempt “to reform jail practices rather than to re dress past constitutional torts and2 The court’s concern with the merits of the complai nt is evidenced by the

hearing on the class action motions: see, e.g. , App. at 88 (explaining that for the plaintiffs to have exhausted their claims, their gr ievance would have to “rise to the level of a violation of the Eighth Amendment” a nd then concluding that “[s]ome of these things don’t rise to that level”), 98 (asking whether the remedies requested by the plaintiffs are required by the Eig hth Amendment), 100–01 (requesting supplemental briefing on why the reques ted relief is required by the Eighth Amendment and then stating, “[A]s far as I i nterpret your complaint, you’ve gone way beyond anything that any court has ever said is required under the Eighth Amendment”). 10 prevent their reoccurrence.” Id . at 647. The problem here, according to the court , was that the PLRA limited the federal court’s abili ty to address such a complaint. Since it concluded that under the PLRA it could nei ther “prescribe jail practices for humane treatment of prisoners” nor interfere wi th the executive and legislative branches’ ability to structure prisons as they saw fit, the relief the plaintiffs sought was “beyond the competence and the jurisdict ion of [the] court.” Id. at 648. 2
C. The Effect of the PLRA on Rule 23 We first consider whether, as the district court co ncluded, the PLRA has changed the requirements for class certification un der Rule 23. El Paso argues that the PLRA has changed the prison condition liti gation landscape in a fundamental way that must be considered in the Rule 23 class action certification analysis. The prisoners respond that the PLRA affe cts only the remedies they can ultimately obtain and does not alter Rule 23.11

The district court’s analysis of the PLRA centered around the following provision that limits prospective relief in cases i nvolving prison conditions: Prospective relief in any civil action with respectto prison conditions shall extend no further than necessary to correct t he violation of the Federal right of a particular plaintiff or plaintif fs. The court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Fed eral right. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice syste m caused by the relief. 18 U.S.C. § 3626(a)(1)(A). While the court determined that this provision did not entirely prohibit class action certification, it held that it did con stitute a significant limitation on its jurisdiction to entertain class action suits byprisoners. Shook, 216 F.R.D. at 646. The question for us, then, is whether courts may consider the relief the prisoners seek in determining whether to certify a class under the PLRA. Our review of the PLRA leads us to conclude that it doe s not limit class certification decisions in this way. In interpreting the PLRA, “[w]e begin, as we do anyinstance of statutory construction, with the language of the statute.” In re Geneva Steel Co. , 281 F.3d 1173, 1178 (10th Cir. 2002) (citing Yankee Atomic Elec. Co. v. N.M. & Ariz. Land
Co. , 632 F.2d 855, 857 (10th Cir. 1980)); see also Guidry v. Sheet Metal Workers Int’l Ass’n, Local No. 9 , 10 F.3d 700, 708 (10th Cir. 1993) (“The objective of3 For instance, the PLRA contains provisions governi ng prisoner release

orders, 18 U.S.C. § 3626(a)(3); consent decrees, id . subsection (c); and the use of special masters, id . subsection (f). 12 reading the statute is to determine the intent of C ongress. The text of the statute itself is the best evidence of that intent.”) (citations omitted). The text of the PLRA says nothing about the certification of class actions. Based on the statute’s absence of direction in that area, we presume that Congress intended to leave Rule 23 intact. See Dep’t of Hous. & Urban Dev. v. Rucker , 535 U.S. 125, 133 n.4 (2002) (concluding that Congress is “presumed t o be aware” of a statute’s interpretation when it amends another part of the s ame statute without addressing the part at issue); Edelman v. Lynchburg Coll. , 535 U.S. 106, 117–18 (2002) (explaining that Congress’s amendment of “the law w ithout repudiating the regulation” suggested consent to ongoing use of the regulation). This presumption is buttressed by the fact that the PLRAincludes provisions relating to the administration of class action suits, sugges ting that Congress recognized that class actions would continue to remain availab le to challenge conditions of confinement. 3 Cf. Founding Church of Scientology of Wash., D.C., Inc. v. Director, Fed. Bureau of Investigation , 459 F. Supp. 748, 755 (D.D.C. 1978) (noting that because Congress did not expressly wai ve the exhaustion of administrative remedies requirement when it amendedthe Federal Tort Claims Act, that requirement remained applicable to class actions under Rule 23).13

Our conclusion that the PLRA does not alter the cla ss certification analysis under Rule 23 has been reached by other courts. Th e Fifth Circuit, for example, held that § 3626(a)(1) is not implicated until the court undertakes to fashion prospective relief. Williams v. Edwards , 87 F.3d 126, 133 (5th Cir. 1996) (“The district court has fashioned no prospective relief and the provisions of [§ 3626(a)(1)] have yet to be triggered.”). The co urt did, however, explain that if, after examining the plaintiffs’ claims, the distric t court found a violation of a federal right, “then any remedy it might fashion mu st conform to the standards set forth in the Act.” Id. Thus, because the fashioning of prospective reli ef does not occur at the class certification stage, it logicall y follows that § 3626(a)(1) does not bear on a court’s class certification analysis. In addition, courts have continued to allow prison conditions cases to be certified as long as the elements of Rule 23 have b een met, even cases broadly challenging conditions of confinement. For instanc e, in Anderson v. Garner , 22 F. Supp. 2d 1379 (N.D. Ga. 1997), when the defendants argued that under § 3626(a)(1) courts “should diligently refrain fromcertifying classes . . . which would require the federal courts to maintain securi ty and control of the state prison system,” the court emphasized that “[s]ectio n 3626(a)(1) addresses only the type of relief courts may use to redress constitutional violations , and says nothing about the nature of the proceedings underlying the remedy ordered by the court.”14

Id. at 1383 (citations omitted); see also Armstrong v. Davis , 275 F.3d 849 (9th Cir. 2001) (reviewing the propriety of class certif ication under Rule 23, then separately reviewing whether district court’s injun ctive relief was narrowly tailored under § 3626(a)(1)); Skinner v. Uphoff , 209 F.R.D. 484, 489 (D. Wyo. 2002) (certifying class action challenging prison c onditions because plaintiffs satisfied elements of Rule 23); Jones ‘El v. Berge , No. 00-C-421-C, 2001 WL 3437961 (W.D. Wis. Aug. 14, 2001) (allowing amendedprisoner class action complaint challenging prison conditions because pla intiffs satisfied elements of Rule 23). Thus, we conclude that Congress did not intend the PLRA to alter class certification requirements under Rule 23 and that t he district court erred in concluding otherwise. D. Federal Rule of Civil Procedure 23 Having held that the PLRA does not add new elements to the class certification analysis, Rule 23 remains the appropr iate analytical framework for class certification questions. We now turn to the issue of whether the district court properly applied Rule 23’s certification requ irements to the facts of this

case. “In determining the propriety of a class action, th e question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the15

merits, but rather whether the requirements of Rule 23 are met.” Anderson v. City of Albuquerque , 690 F.2d 796, 799 (10th Cir. 1982) (quotation omi tted); see also Eisen v. Carlisle & Jacquelin , 417 U.S. 156, 177 (1974) (“[N]othing in either th e language or history of Rule 23 . . . gives a court any authority to conduct a preliminary inquiry into the merits of a suit in or der to determine whether it may be maintained as a class action.”). Although “the class determination generally involves considerations that are enmeshed in the fa ctual and legal issues comprising the plaintiff’s cause of action,” the co urt’s responsibility is to “carefully apply the requirements of Rule 23(a).” Gen. Tel. Co. of the S.W. v. Falcon , 457 U.S. 147, 160 (1982) (citations and quotation s omitted); see also Anderson , 690 F.2d at 799. Thus, the court’s first inquiry is whether the plai ntiff can show the existence of the four threshold requirements of Rul e 23(a). Adamson v. Bowen , 855 F.2d 668, 675 (10th Cir. 1988). Specifically, the court must decide if (1) the class is so numerous that joinder of all me mbers is impracticable, (2) there are questions of law or fa ct 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 p rotect the interests of the class. Fed. R. Civ. P. 23(a). If the court finds that the plaintiffs have met the se threshold requirements, “it must then examine whether the action falls with in one of three categories of16

suits set forth in Rule 23(b).” Adamson , 855 F.2d at 675. In this case, the plaintiffs sought to certify the class action under23(b)(2), which provides that a class action is appropriate if “the party opposing the class has acted or refused to act on grounds generally applicable to the class, t hereby making appropriate final injunctive relief or corresponding declaratory reli ef with respect to the class as a whole.” Fed. R. Civ. P. 23(b)(2). Therefore, the court was required to consider whether “the remedies the class [sought] . . . appl [ied] equally to all cases pending within the class.” Adamson , 855 F.2d at 676. Factually different claims of individual class members “should not preclude ce rtification under Rule 23(b)(2) of a claim seeking the application of a co mmon policy.” Id

. According to the prisoners, the problem with the co urt’s order is that it does not square its concerns about the relief they seek with the requirements of Rule 23(a) and (b)(2). They argue that by conducti ng a review of whether the plaintiffs’ requested relief was constitutionally r equired, the district court prematurely peeked at the merits of the case and improperly read two requirements of Rule 23(b)(3)—identifiability and m anageability—into the Rule 23(b)(2) analysis. In defense of the court’s methodology, El Paso argu es that the decision to certify a class “involves intensely practical consi derations” and that therefore the district court properly examined the additional con siderations in its order denying17

class certification. Reed v. Bowen , 849 F.2d 1307, 1309 (10th Cir. 1988). Additionally, El Paso maintains that denial was pro per under Rule 23 because the court’s ruling is best read as concluding that (1) the complaint could not meet the commonality, typicality, and representational requi rements of Rule 23(a) and (2) the plaintiffs’ claims were too dissimilar to satis fy Rule 23(b)(2). Specifically with respect to Rule 23, El Paso argue s that the prisoners’ individual claims are too varied to meet the common ality and typicality requirements because each prisoner’s claim requires a particularized analysis on the merits. El Paso claims that these failings in commonality and typicality make the prisoners inadequate class representatives. Fi nally, El Paso argues that the dissimilarities among the prisoners’ claims—i.e., their varied mental health problems and potential remedies for those problems—make final injunctive relief inappropriate under Rule 23(b)(2). On this record and at this stage in the litigation, we agree with the prisoners. The district court erred by not specifi cally addressing the traditional Rule 23 factors in denying class certification. See J.B. , 186 F.3d at 1287. Its order instead prematurely focused on whether the co urt could ultimately fashion a remedy that satisfied the strictures of § 3626(a)(1 )(A). Two additional considerations bear on the district court’s application of Rule 23. The prisoners contend that by looking at the merits of their claim, the18

district court appears to have imported additional elements from Rule 23(b)(3) into the (b)(2) analysis: identifiability and mana geability. While we agree with the prisoners in part, as explained below, we are n ot persuaded that manageability is never a proper inquiry under Rule 23(b)(2). Regarding identifiability, the district court’s ord er specifically states that “[t]he initial problem in this case is the identifi cation of members of the class.” Shook, 216 F.R.D. at 647–48. However, while the lack of identifiability is a factor that may defeat Rule 23(b)(3) class certific ation, such is not the case with respect to class certification under Rule 23(b)(2). See Yaffe v. Powers , 454 F.2d 1362, 1366 (1st Cir. 1972) (“[N]otice to the member s of a (b)(2) class is not required and the actual membership of the class nee d not therefore be precisely delimited.”). In fact, many courts have found Rule 23(b)(2) well suited for cases where the composition of a class is not readily asc ertainable; for instance, in a case where the plaintiffs attempt to bring suit on behalf of a shifting prison population. Id. at 1366; see also Adamson , 855 F.2d at 676 (citing Yaffe with approval). The district court also looked to a manageability r equirement in applying Rule 23(b)(2): it found that the “breadth [of relie f] [made] the proposed class4 Rule 23(b)(3) expressly directs courts to assess the “difficulties likely to

be encountered in the management of a class action. ” 19 action not manageable with [the] court’s limited ju risdiction.” 4 Shook, 216 F.R.D. at 648. The circuits do not speak with one voice on whether courts may look to manageability considerations in evaluating Rule 23(b)(2) class certification. The Fourth Circuit, for example, ha s held that “[i]ssues such as class action manageability are properly committed t o the district court’s discretion, because that court generally has a greater familiarity and expertise with the practical and primarily factual problems o f administering a lawsuit than does a court of appeals.” Lowery v. Circuit City Stores, Inc. , 158 F.3d 742, 757 (4th Cir. 1998) (citations and quotations omitted). The court also stated that, “in exercising the ‘broad discretion’ to decide whetherto allow a suit to proceed as a class action, some courts have ruled it is appropri ate to take account of considerations not expressly addressed in Rule 23, including manageability in Rule 23(b)(2) cases.” Id. at 758 (citing 7B C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 1785 (2d ed. 1986)). The Lowerycourt went on to hold that since “efficiency is one of the pri mary purposes of class action procedure, . . . in appropriate circumstances a dis trict court may exercise its discretion to deny certification if the resulting c lass action would be5 Several other courts have endorsed this view. See, e.g. , Walsh v. Ford

Motor Co. , 807 F.2d 1000, 1019 n.111 (D.C.C. 1986) (noting that “manageability problems that might block a class action under Rule 23(b)(3) may be entailed as well in the Rule 23(b)(2) format”); Simer v. Rios , 661 F.2d 655, 669 n.24 (stating that “it is not all clear that the problems in mana ging a class action are not relevant in certifying (b)(1) and (b)(2) class acti ons”); Seidel v. Gen. Motors Acceptance Corp ., 93 F.R.D. 122, 126 (W.D. Wash. 1981) (holding th at manageability is and must be a concern when decidin g class certification under Rule 23(b)(2)); Duncan v. Tennessee , 84 F.R.D. 21, 34 (M.D. Tenn. 1979) (noting that manageability is a proper inquiry under Rule 2 3(b)(2)). 20 unmanageable or cumbersome.” Id. at 759 n.5. 5 According to the Fifth Circuit, however, in Forbush v. J.C. Penney Co.,
Inc. , 994 F.2d 1101, 1105 (5th Cir. 1993), “questions o f manageability and judicial economy are . . . irrelevant to 23(b)(2) c lass actions.” The Ninth Circuit reached a similar conclusion in Elliott v. Weinberger , 564 F.2d 1219, 1229 (9th Cir. 1977) (“[B]y its terms, Rule 23 makes manageab ility an issue important only in determining the propriety of certifying an actio n as a (b)(3), not a (b)(2), class action.”), aff’d in pertinent part sub nom. Califano v. Yamasa ki , 442 U.S. 682, 701 (1979). We agree with the Lowerycourt. Elements of manageability and efficiency are not categorically precluded in determining whet her to certify a 23(b)(2) class. While Rule (b)(2) classes for injunctive relief are usually easier to manage than damages class actions, courts also need to look to whether the class is amenable to uniform group remedies. See Allison v. Citgo Petroleum Corp ., 151 F.3d 402,21

414 (5th Cir. 1998); 2 Newberg & Conte, supra, at § 4:17 (while injunctive relief “may often be awarded without requiring a sp ecific or time-consuming inquiry into the varying circumstances and merits o f each class member’s individual case,” courts may still look to whether the class is amenable to “uniform group remedies” in assessing management of the class). The vehicle of class action litigation must ultimately satisfy pra ctical as well as purely legal considerations. Notwithstanding our holding that manageability is n ot categorically barred in Rule 23(b)(2) class certification decisions, the district court’s order has yet to apply fully the Rule 23 framework. On remand, it m ay well be that the factual and legal concerns leading the court to consider pr oblems of identifying and managing the class support (a) a finding under Rule 23(a) that the class lacked sufficient commonality, typicality or adequacy of r epresentation, (b) a finding under Rule 23(b)(2) that El Paso did not operate th e prison “on grounds generally applicable” to the class, or (c) a finding that, no twithstanding the PLRA, efficiency or manageability considerations undermin e the court’s ability to provide injunctive relief to the class framed in th e complaint. In looking at these issues, there could also be (d) reasons why the “me rits may become intertwined with proper consideration of other issues germane t o whether the case should be certified as a class action” that guide the court’s class certification decision.6 We also do not address whether the district court could properly dispose

of the case in another manner, for instance, by dis missing the case on its own motion under 42 U.S.C. § 1997e(c)(1) if it determin es that the plaintiffs have failed to state a claim upon which relief can be gr anted or by “us[ing] an accelerated summary judgment procedure before class certification to test the plaintiff[s’] right to proceed to trial.” Adamson , 855 F.2d at 677 n.12 (citing 7B C. White, A. Miller & M. Kane, supra, at § 1785. 22 Adamson , 855 F.2d at 677 n.12. We cannot make that determ ination on this record, however, until the district court has appli ed all of the elements of Rule 23 to the facts alleged in the complaint.
III. CONCLUSION We hold that the PLRA does not add new elements to the class certification analysis. Rather, because the district court erred by denying class certification relief without addressing Rule 23(a)’s threshold re quirements or assessing Rule 23(b)(2)’s requirement of general applicability, we must reverse and remand for further consideration of the prisoners’ complaint. We express no view on the district court’s ultimate decision whether to certi fy in light of this opinion, nor do we opine on the ultimate merits of the substantive claims. 603-1397, Shook v. El Paso County

TACHA , Chief Circuit Judge, concurring in part, dissenti ng in part.

I readily join the majority’s opinion, with one exc eption. The majority holds that manageability is a proper criterion for courts to consider when certifying Fed. R. Civ. P. 23(b)(2) class actions. I respectfully dissent from this portion of the majority’s opinion. First, I find that circuit precedent bars this hold ing. We previously addressed whether a district court could rely upon a criterion listed under Rule 23(b)(3) as a reason for denying class certificatio n under Rule 23(b)(2). See Adamson v. Bowen , 855 F.2d 668, 676 (10th Cir. 1988). There, plain tiff “sought relief under Rule 23(b)(2), which contains no requi rement of ‘predominance.’ The district court placed upon the class a burden t hat the rule does not authorize.” Id. I find that Adamson governs this case, prohibiting the use of a criter ion found in Rule 23(b)(3)—such as manageability—as grounds f or denying a Rule 23(b)(2) class. Second, even if circuit precedent did not govern th is issue, I find that the standard rules of statutory construction lead to a result contrary to that reached by the majority. Rule 23(b)(3) explicitly has a manag eability criterion. See Fed. R. Civ. P. 23(b)(3)(D). Rule 23(b)(2) does not. Stan dard rules of construction, then, lead to the conclusion that manageability is not a criterion for Rule 23(b)(2)-2-

classes. See O'Gilvie v. United States , 519 U.S. 79, 96 (1996) (“When the legislature uses certain language in one part of th e statute and different language in another, the court assumes different meanings we re intended.”) (internal citation omitted). The majority counters that Rule 23(b)’s language is merely permissive, allowing the district court to consider Rule 23(b)( 3) criteria in a Rule 23(b)(2) class. See Fed. R. Civ. P. 23(b) (“An action maybe maintained as a class action if the prerequisites [are met.]”) (emphasis added). Such a reading, however, simply ignores the entire structure of Rule 23(b). See Almendarez-Torres v. United States , 523 U.S. 224, 228-29 (1998) (“we look to the statute’s language, structure, subject matter, context, and history--fa ctors that typically help courts determine a statute’s objectives and thereby illumi nate its text.”). The majority’s reading collapses the differences between a Rule 23 (b)(1), (b)(2) and (b)(3) class, allowing a district court to consider any criteria under any of the subsections for any type of class. Such a reading is not in line w ith the structure of Rule 23(b) and is thus contrary to standard statutory construc tion. See United States v. Rodgers , 461 U.S. 677, 706 (1983) (“The word ‘may,’ when u sed in a statute, usually implies some degree of discretion[, but] [t ]his common-sense principle of statutory construction . . . can be defeated by ind ications of legislative intent to the contrary or by obvious inferences from the stru cture and purpose of the-3-

statute”) (footnote and citations omitted). Rule 2 3(b) clearly envisions the different subsections and their concomitant criteri a applying distinctly to different types of class actions. I find, therefore, the Fifth and Ninth Circuits’ ap proach more persuasive. See Forbush v. J.C. Penney Co., Inc ., 994 F.2d 1101, 1105 (5th Cir. 1993) (“questions of manageability and judicial economy a re . . . irrelevant to 23(b)(2) class actions.”); Elliott v. Weinberger , 564 F.2d 1219, 1229 (9th Cir. 1977) (same), aff’d in part sub nom. Califano v. Yamasaki , 442 U.S. 682 (1979). As such, I respectfully dissent from the manageabilitysection of the majority’s opinion.