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‐
1
taken several times before.
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‐
2
tainees subsequently joined the lawsuit.
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
3
a dentist.” 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
4
one.” The district court concluded in a subsequent order that
the case could also proceed as a class action under Rule
5
23(b)(3).
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
7
(N.D. Ill. 2011). 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
9
level of staffing as “optimum.”
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
10
are not consistent[ly]” performed.
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
11
wait time.”
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.
12
And [he] notified them.” 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‐
13
nʹt been addressed.”
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‐
14
uled to get a tooth pulled.” 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
15
the deck to issue medication” and “s[aw] [his] face.” 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‐
16
uary” 2014. The dentist extracted a tooth, and Mr. Olden tes‐
17
tified that the pain subsided.
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,
18
2014.
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
19
“[b]ecause there was nothing that she could do.” 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
20
the process.” Mr. Thompson’s tooth was extracted on or
21
around September 10, 2013.
Jason Knickrehm testified that he submitted an HSR on
October 8, 2013, complaining of a broken tooth and a tooth‐
ache, but did not receive 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’
22
claims.” 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
23
many reasons and at many stages.” 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‐
24
dividual case.” 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‐
25
wide. 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
27
adjudicated classwide. 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
28
imposed a “floor.”
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
29
had presented “questions of law or fact common to the class,”
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
30
case.” 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‐
31
ments.
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‐
32
ous medical condition 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‐
34
appropriate.”). 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
35
indifference. 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
36
all detainees are effectively denied treatment.” 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
37
depending on the facts of the individual case,” but the de‐
tainees do not present a pattern of egregious delays across the
38
entire class. See Gutierrez, 111 F.3d at 1375 n.10. 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
39
to staff the Jail with only one dentist. 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‐
40
icy concerns that we have articulated in our cases. 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
41
whether to reconsider the decertification.
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.