Joseph Ward v. John Hellerstedt

Case: 17-50899 Document: 00514683288 Page: 1 Date Filed: 10/16/2018

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
October 16, 2018
No. 17-50899
Lyle W. Cayce
Clerk
JOSEPH WARD, by his next friend Frances Bourliot; MICHAEL
ANDERSON, by his next friend Phil Campbell; ISAAC LEMELLE, by his
next friend Mark Westenhover; CECIL ADICKES, by his next friend Elsie
Craven; MICHAEL GIBSON, by his next friend Mark Westenhover; MARC
LAWSON, by his next friend Krista Chacona; JENNIFER LAMPKIN, by her
next friend Elsie Craven,

Plaintiffs - Appellees

v.

DR. JOHN HELLERSTEDT, in his official capacity as Commissioner of the
Texas Department of State Health Services,

Defendant - Appellant

Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:16-CV-917

Before DENNIS, CLEMENT, and ENGELHARDT, Circuit Judges.
PER CURIAM:*
The defendant-appellant, Dr. John Hellerstedt, in his official capacity as
Commissioner of the Texas Department of State Health Services,

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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(“Defendant”) 1 challenges on appeal the propriety of the class certification
order issued by the district court. In its order, the district court certified two
classes of plaintiffs—one including individuals charged with Texas crimes but
adjudged to be incompetent to stand trial under Texas law; and the other
including individuals acquitted of Texas crimes because they were determined
to be insane under Texas law. Because the district court failed to conduct a
sufficiently rigorous analysis of whether Federal Rule of Civil Procedure 23(a)’s
requirements are met, its class certification order is deficient. Accordingly, we
vacate the class certification order and remand to the district court for further
proceedings consistent with this opinion.
BACKGROUND
Under Texas law, criminal defendants adjudged incompetent to stand
trial 2 and individuals acquitted of crimes by reason of insanity 3 may, under
certain circumstances specified by statute, be committed to facilities for

1 On September 29, 2017, while Defendant’s request under Federal Rule of Civil
Procedure 23(f) for permission to appeal the district court’s class certification order was
pending, the named plaintiffs in this matter filed their third amended complaint, which,
among other things, substituted Charles Smith, in his official capacity as Executive
Commissioner of the Texas Health and Human Services Commission (“HHSC”), as the
defendant. This was due to a reorganization of the State’s health and human services system
that granted control of state hospitals to HHSC on September 1, 2017. See TEX. GOV’T CODE
§§ 531.001(2), 531.0011(a)(2), 531.0201(a)(2)(C); TEX. HEALTH & SAFETY CODE §§ 1001.004,
1001.072.
2 A criminal defendant is considered incompetent to stand trial under Texas law if he

or she does not have “sufficient present ability to consult with the person’s lawyer with a
reasonable degree of rational understanding” or “a rational as well as factual understanding
of the proceedings against the person.” TEX. CODE CRIM. PROC. ANN. art. 46B.003(a)(1)&(2)
(West 2004).
3 An individual charged with a crime is considered not guilty of that crime by reason

of insanity if: “(1) the prosecution has established beyond a reasonable doubt that the alleged
conduct constituting the offense was committed; and (2) the defense has established by a
preponderance of the evidence that the defendant was insane at the time of the alleged
conduct.” TEX. CODE CRIM. PROC. ANN. art. 46C.153(a) (West 2004). A criminal defendant
who is found not guilty by reason of insanity “stands acquitted of the offense charged and
may not be considered a person charged with an offense.” TEX. CODE CRIM. PROC. ANN. art.
46C.155(a) (West 2004).
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inpatient mental health treatment, restoration services, evaluation and/or
observation. 4 The State of Texas does not have enough beds in its hospitals,
which generally operate at full capacity, to accommodate at once all persons
who have been committed for inpatient services. 5 To equitably allocate
available hospital beds, the State generally uses a “first-come, first-served”
approach. Individuals who are awaiting admission to a state hospital are
generally detained in county jails pending their transfer, 6 sometimes for
months. 7

4 See e.g., TEX. CODE CRIM. PROC. ANN. arts. 46B.071, 46B.073 (West 2004); TEX. CODE
CRIM. PROC. ANN. arts. 46C.201, 46C.251, 46C.256, 46C.261 (West 2005).
5 According to the uncontradicted declaration of Timothy E. Bray, the Director of State

Hospitals for the Texas Department of State Health Services at the time this suit was filed,
Texas has nine state hospitals that offer inpatient services to criminal defendants found
incompetent to stand trial and individuals acquitted of criminal charges on insanity grounds.
Such hospitals also serve individuals who are civilly committed for services and persons who
admit themselves voluntarily. Those hospitals are funded to operate 2,385 inpatient beds.
Two of the hospitals are equipped as maximum security units (“MSU”) and operate a total of
314 inpatient beds. The State contracts with two private psychiatric hospitals for competency
restoration services, which provide an additional 114 beds.
6 Texas law does not specifically address under all circumstances where and for how

long to hold incompetent criminal defendants and individuals acquitted of criminal charges
on insanity grounds pending transfer to an inpatient mental health facility. However, Texas
law does require a court that commits a criminal defendant for inpatient competency
restoration to place that defendant “in the custody of the sheriff or sheriff’s deputy for
transportation to the facility or program.” TEX. CODE CRIM. PROC. ANN. art. 46B.075 (West
2004). Texas courts are also specifically allowed to order individuals acquitted of crimes by
reason of insanity detained in jail or another “suitable place” for up to 14 days pending further
proceedings. TEX. CODE CRIM. PROC. ANN. art. 46C.160 (West 2005). Additionally, with
respect to a “non-dangerous” individual acquitted due to insanity, if there is evidence to
support a finding of mental illness or mental retardation, then a Texas court may order such
person detained in jail or another “suitable place” pending “prompt initiation and
prosecution” of required civil commitment proceedings. TEX. CODE CRIM. PROC. ANN. art.
46C.201 (West 2005).
7 In 2017, the average wait time for incompetent criminal defendants and insanity

acquittees to be transferred from a county jail to a non-MSU hospital was 16 days, while the
average wait time for transfer into an MSU hospital was 147 days.
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Joseph Ward, Michael Anderson, and Isaac Lemelle, the original
plaintiffs in this 42 U.S.C. § 1983 suit, 8 amended their complaint twice, adding
Marc Lawson, Jennifer Lampkin, Cecil Adickes, and Michael Gibson as
plaintiffs. 9 (Each of the foregoing individuals shall be collectively referred to
herein as “Plaintiffs.”) In Plaintiffs’ second amended complaint, Ward,
Anderson, Lemelle, Lawson and Lampkin allege that, though they had been
ordered committed for inpatient competency restoration services by Texas
courts, they had been detained in county jails awaiting admission to state
hospitals for periods ranging from 15 to 27 weeks. Adickes and Gibson allege
that, though they had been acquitted of criminal charges by reason of insanity
and ordered committed to maximum security unit (“MSU”) facilities for
evaluation and treatment, they had been detained in county jails awaiting
admission to such facilities for two weeks and ten weeks, respectively.
Plaintiffs claim that Defendant has violated their Fourteenth Amendment due
process rights by confining them in county jails for unreasonable periods of
time without criminal convictions and failing to provide them with the
appropriate mental health treatment and/or services during their confinement.
They have further requested that the court certify two classes of similarly
situated plaintiffs; issue an order declaring that Defendant has violated their
Fourteenth Amendment due process rights; and issue preliminary and
permanent injunctive relief prohibiting Defendant from violating such rights.
On November 28, 2016, Plaintiffs moved for class certification.
Defendant initially opposed Plaintiffs’ motion under Rule 23 of the Federal
Rules of Civil Procedure (“Rule 23”). On February 27, 2017, the district court

8 Disability Rights of Texas was also an original party to the suit but was later dropped
as a plaintiff in the first amended complaint.
9 Alexander Soto and Morgan Areschchenko were added as plaintiffs in the first

amended complaint but were then removed from the suit in the second amended complaint.
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entered a scheduling order setting a deadline of May 1, 2017 for the parties to
file all amended or supplemental pleadings and to join new parties. On August
17, 2017, Defendant filed an “Advisory to the Court” indicating that Plaintiffs’
claims were moot since each of them had been admitted to state hospitals and
that, because no class had yet been certified, the class claims were also moot.
Plaintiffs disagreed, asserting that the “inherently transitory” nature of their
claims saved them from mootness. Plaintiffs further offered to provide the
district court with briefing on this argument or, alternatively, amend their
complaint to add new plaintiffs who were still being detained in county jails.
Id. Without responding to Plaintiffs’ request for guidance on how to proceed,
on September 1, 2017, over nine months after Plaintiffs filed their motion for
class certification, the district court entered an order purporting to certify the
following two classes of plaintiffs:
(1) All persons who are now, or will be in the future, charged with
a crime in the State of Texas, and (a) who are ordered to a Texas
Department of State Health Services facility where they are to
receive competency[]restoration services; and (b) for whom the
Texas Department of State Health Services receives the court
order; but (c) who remain detained in a Texas county jail
[(“Incompetent Detainee(s)”)]; 10 and

(2) All persons who are now, or will be in the future, charged with
a crime in the State of Texas and who are found not guilty by
reason of insanity, and (a) who are ordered to receive
evaluation-and-treatment services at a Texas Department of
State Health Services facility; (b) for whom the Texas
Department of State Health Services receives the court order;
but (c) who remain detained in a Texas county jail for more than
14 days [(“Insanity Acquittee(s)”)].

10 In addition to challenging the district court’s class certification order on Rule 23
grounds, Defendant argues on appeal that the district court lacked jurisdiction to certify the
Incompetent Detainee class because such class includes individuals who lack standing to
assert claims in this matter. We need not reach the merits of such argument since we vacate
the class certification order on other grounds.
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The district court did not, however, explicitly appoint the named plaintiffs as
class representatives as they had requested. Instead, the court ordered
Plaintiffs to file yet another amended complaint including “named plaintiffs to
be appointed as class representatives for the two classes.”
On September 29, 2017, while Defendant’s Rule 23(f) request for
permission to appeal the district court’s class certification order was pending,
Plaintiffs filed their third amended complaint, in which they added the
following named plaintiffs: Kenneth Jones, a criminal defendant adjudged to
be incompetent to withstand trial; and Mary Sapp, who had been acquitted of
criminal charges due to insanity. 11 On October 17, 2017, Plaintiffs filed a
motion requesting that the district court appoint not only Jones and Sapp as
class representatives, but also Lawson, Lampkin, Adickes, and Gibson, which
Defendant opposed. On the same date, Defendant requested that the district
court stay proceedings pending his appeal of the class certification order.
Plaintiffs agreed to the stay request with the “understanding . . . that the Court
should rule on Plaintiffs’ Motion to Appoint Class Representatives before
ruling on [the] motion for stay.” On November 2, 2017, without ruling on
Plaintiffs’ motion to appoint class representatives, the district court entered an
order staying all proceedings.
While Defendant appeals the district court’s class certification order on
multiple grounds, his primary arguments are that (1) the district court lacked
jurisdiction to enter its class certification order because Plaintiffs’ claims, and
therefore, this entire action, became moot prior to the district court entering
such order; and (2) even if this case is not moot, the district court’s class
certification order is deficient under Rule 23. For the reasons set forth below,

11 In the third amended complaint, the original named plaintiffs also acknowledged
that they had all been admitted to state hospitals.
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we reject Defendant’s mootness argument and vacate the district court’s
certification order on Rule 23 grounds.
STANDARD OF REVIEW
Mootness and standing are issues of law that we review de novo.
Fontenot v. McCraw, 777 F.3d 741, 746 (5th Cir. 2015). Likewise, “whether the
district court applied the correct legal standards” in certifying a class is
reviewed de novo. M.D. ex rel. Stukenberg v. Perry, 675 F.3d 832, 836 (5th Cir.
2012) (internal quotation marks and citation omitted). If the district court has
applied the correct legal standard, we then review its analysis and order
certifying a class for an abuse of discretion. Id. “A trial court abuses its
discretion when its ruling is based on an erroneous view of the law or a clearly
erroneous assessment of the evidence.” Yates v. Collier, 868 F.3d 354, 359 (5th
Cir. 2017) (internal quotation marks and citation omitted). Thus, if the district
court’s “account of the evidence is plausible in light of the record viewed in its
entirety,” we may not reverse. Id. at 363 (internal quotation marks and
citation omitted). This deference is a result of “the essentially factual basis of
the certification inquiry and of the district court's inherent power to manage
and control pending litigation.” Id. at 360 (internal quotation marks and
citation omitted).
DISCUSSION
Mootness
a. General Mootness Rule
Given that mootness is a jurisdictional inquiry, 12 we preliminarily turn
our attention to Defendant’s mootness argument. As a general rule, “a

12 See U.S. v. Sanchez-Gomez, 138 S. Ct. 1532, 1537 (2018) (acknowledging that “[a]
case that becomes moot at any point during the proceedings is no longer a ‘Case’ or
‘Controversy’ for purposes of Article III, and is outside the jurisdiction of the federal courts”
(internal quotation marks and citation omitted)).
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purported class action becomes moot when the personal claims of all named
plaintiffs” have been satisfied prior to certification of a class, since, under such
circumstances, there is no longer an Article III “case or controversy” for the
court to resolve. Murray v. Fid. Nat’l Fin., Inc., 594 F.3d 419, 421 (5th Cir.
2010) (internal citations omitted); see also Sosna v. Iowa, 419 U.S. 393, 402
(1975) (noting that “[t]here must . . . be a named plaintiff who has [an Article
III] case or controversy at the time the complaint is filed” and “at the time the
class is certified by the [d]istrict [c]ourt,” as well as on review). 13 It is
undisputed that each of the Plaintiffs were transferred from county jails to
state hospitals at least 6 weeks prior to the district court entering its class
certification order. Considering Plaintiffs’ allegations and the relief requested,
each Plaintiff’s claim seemingly was satisfied upon his or her transfer. Thus,
unless Plaintiffs’ claims fall within an exception to the general rule, this matter
became moot on July 20, 2017 when the last Plaintiff remaining in a county
jail was transferred to a state hospital.
b. Inherently Transitory Exception to Mootness
Potential class actions involving claims that are “inherently transitory”
fall within an exception to the general mootness rule, since such claims would
otherwise likely evade review. See Genesis Healthcare v. Symczyk, 569 U.S.
66, 76 (2013) (quoting Cty. of Riverside v. McLaughlin, 500 U.S. 44, 52 (1991))
(internal quotation marks and citation omitted). Indeed, in these cases it is
likely that “the trial court will not have even enough time to rule on a motion
for class certification before the proposed representative’s individual interest
expires.” Id. (internal quotation marks and citations omitted). Therefore, in

13 Where, however, the named plaintiff’s claims become moot after a class has been
properly certified in a matter, the expiration of the named plaintiff’s claims does not have the
effect of mooting the entire action since “the class of unnamed persons described in the
certification acquired a legal status separate from the interest asserted by [the named
plaintiff].” Sosna, 419 U.S. at 399.
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cases involving such claims, a class certification order is deemed to relate back
to the time of the filing of the original complaint. See McLaughlin, 500 U.S. at
52 (citing Swisher v. Brady, 438 U.S. 204, 213-214, n.11 (1978)).
While neither the Supreme Court nor this court has provided detailed
guidance as to what makes a claim “inherently transitory,” Supreme Court
jurisprudence suggests that the following factors are pertinent to such a
determination: the challenged conduct giving rise to the claim is of a fleeting
or temporary nature; uncertainty exists at the outset as to the duration of each
plaintiff’s exposure to the allegedly harmful conduct; it is unlikely that any
given individual plaintiff could see his claim to fruition prior to the claim
becoming moot; and there exists a constant group of people suffering the harm
alleged by the plaintiffs. See, e.g., Genesis Healthcare, 569 U.S. at 76; Gerstein
v. Pugh, 420 U.S. 103, 110, n.11 (1975).
Considering the foregoing, as well as the application of the doctrine by
other courts in the prison context, 14 we believe that Plaintiffs’ claims in this
case qualify as “inherently transitory.” First, the putative plaintiffs’ allegedly
unlawful detention is of a fleeting or temporary nature, lasting anywhere from
days to months. Additionally, there is uncertainty at the inception of each

14 See, e.g., Gerstein, 420 U.S. at 110, n.11 (finding that the claims of pretrial detainees
who argued that they were entitled to a probable cause hearing “belong[] . . . to that narrow
class of cases in which the termination of a class representative’s claim does not moot the
claims of the unnamed members of the class”); Amador v. Andrews, 655 F.3d 89, 100-01 (2d
Cir. 2011) (recognizing that “[w]hether claims are inherently transitory is an inquiry that
must be made with reference to the claims of the class as a whole as opposed to any one
individual claim for relief” and finding the claims of the plaintiffs, female inmates in New
York prisons, to be inherently transitory given that “the odds of a[ plaintiff] being able to
complete the [state’s] grievance procedure [with respect to a sexual assault and/or
harassment claim] and litigate a class action while still incarcerated [were] rather small”);
Olson v. v. Brown, 594 F.3d 577, 583 (7th Cir. 2010) (emphasizing that the named plaintiff
who was an inmate at a temporary detention center “did not know when his claim would
become moot” since “[t]he duration of his claim was at the discretion of the [state]
[d]epartment of [c]orrection”).

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potential plaintiff’s claim regarding how long he or she will remain detained in
a county jail prior to being transferred to a state hospital. Thus, although there
are potential class members whose claims would not expire within the time it
would take to obtain a class certification order, there is no way for Plaintiffs to
ensure that any named plaintiff added to their complaint will be that
individual. Additionally, even if an individual plaintiff were to maintain a live
claim at the time of class certification, it is highly unlikely that such plaintiff’s
claims would remain live throughout the entirety of this lawsuit. Finally,
regardless of the status of any individual named plaintiff’s claim, there exists
a constant group of people being subjected to Defendant’s “first-come, first-
served” policy complained of by Plaintiffs. Indeed, by way of analogy, such
policy operates similarly to a revolving door. These characteristics of Plaintiffs’
claims make them likely to evade review if they do not fall within an exception
to the general mootness rule. See Genesis, 569 U.S. at 76.
Because of the inherently transitory nature of the claims in this matter,
the expiration of all of Plaintiffs’ claims prior to the district court entering its
class certification order did not have the effect of mooting this action as a
whole. Moreover, should the district court find it appropriate on remand to
certify one or more classes of plaintiffs, its certification order would relate back
to the filing of Plaintiffs’ complaint. See McLaughlin, 500 U.S. at 52 (citing
Swisher, 438 U.S. at 213-214, n.11). In so finding, we acknowledge the
narrowness of the inherently transitory exception 15 but also recognize the
“flexible character of the [Article] III mootness doctrine.” U.S. Parole Comm’n
v. Geraghty, 445 U.S. 388, 400 (1980).

15 See Rocky v. King, 900 F.2d 864, 870 (5th Cir. 1990) (recognizing the narrow scope
of the inherently transitory exception).
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Rule 23
Having satisfied ourselves of both our and the district court’s jurisdiction
over this matter, we now turn to the propriety of the district court’s class
certification order from a procedural standpoint. To obtain class certification,
parties must satisfy the following Rule 23(a) requirements: (1) numerosity—
“the class is so numerous that joinder of all members is impracticable”; (2)
commonality—“there are questions of law or fact common to the class”; (3)
typicality—“the claims or defenses of the representative parties are typical of
the claims or defenses of the class”; and (4) adequacy of representation—“the
representative parties will fairly and adequately protect the interests of the
class.” FED. R. CIV. P. 23(a); see also Wal-Mart Stores, Inc. v. Dukes, 564 U.S.
338, 345 (2011); Ibe v. Jones, 836 F.3d 516, 528 (5th Cir. 2016). In addition to
each of the Rule 23(a) requirements, one Rule 23(b) requirement must be met
for a class to be certified. FED. R. CIV. P. 23(b); Wal-Mart, 564 U.S. at 345.
Here, Plaintiffs sought certification under Rule 23(b)(2), which is satisfied if
“the party opposing the class has acted or refused to act on grounds that apply
generally to the class, so that final injunctive relief or corresponding
declaratory relief is appropriate respecting the class as a whole.” FED. R. CIV.
P. 23(b)(2).
A party seeking class certification has the burden of establishing that all
of Rule 23’s requirements are met. See Ibe, 836 F.3d at 528 (internal citation
omitted); see also Wal-Mart, 564 U.S. at 350 (noting that “Rule 23 does not set
forth a mere pleading standard” and that “[a] party seeking class certification
must affirmatively demonstrate his compliance with the Rule”). Thus, such a
party must “be prepared to prove that there are in fact sufficiently numerous
parties, common questions of law or fact, typicality of claims or defenses, and
adequacy of representation” and to satisfy at least one of Rule 23(b)’s

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provisions “through evidentiary proof.” Comcast Corp. v. Behrend, 569 U.S.
27, 33 (2013) (internal quotation marks and citation omitted).
Additionally, before certifying a class, a district court “must conduct a
rigorous analysis of the Rule 23 prerequisites,” which requires it to “look
beyond the pleadings to understand the claims, defenses, relevant facts, and
applicable substantive law in order to make a meaningful determination of the
certification issues.” Yates, 868 F.3d at 362 (quoting Perry, 675 F.3d at 837
and Wal-Mart, 564 U.S. at 350-51) (internal quotation marks and citation
omitted). In light of this imperative, this court has held that “when certifying
a class a district court must detail with sufficient specificity how the plaintiff
has met the requirements of Rule 23.” Vizena v. Union Pac. R.R. Co., 360 F.3d
496, 503 (2004). Notably, the obligation of a district court to conduct a rigorous
analysis of Rule 23’s requirements, as evidenced by written reasons for
certification, is not dispensed with by the parties’ stipulation to certification or
failure to contest one or more of Rule 23’s requirements, since “the court [is]
bound to conduct its own thorough . . . inquiry.” Stirman v. Exxon Corp., 280
F.3d 554, 563 n.7 (2002) (emphasis added). Such independent analysis is
necessary to “protect unknown or unnamed potential class members [who], . .
. by definition . . . do not and cannot participate in any stipulations concocted
by the named parties.” Id. (internal quotation marks and citation omitted).
However, merits questions may only be considered to the extent “that they are
relevant to determining whether the Rule 23 prerequisites for class
certification are satisfied.” Amgen Inc. v. Conn. Ret. Plans & Tr. Funds, 568
U.S. 455, 466 (2013) (internal citations omitted).

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Not disputing satisfaction of the numerosity requirement, 16 Defendant
argues that the district court erred by failing to conduct a rigorous analysis of
whether the commonality, typicality and adequacy of representation
requirements, as well as Rule 23(b)(2)’s requirements for class-wide injunctive
relief, are met here. We agree.
a. Rule 23(a)
1. Commonality
To satisfy Rule 23(a)’s commonality requirement, “the putative class
members’ claims must depend upon a common contention,” which “must be of
such a nature that it is capable of class-wide resolution.” Yates, 868 F.3d at
361 (quoting Wal-Mart, 564 U.S. at 350) (internal quotation marks omitted).
In other words, determining whether such “common contention” is true or false
must allow for “resol[ution of] an issue that is central to the validity of each

16 Though Defendant does not challenge satisfaction of Rule 23(a)’s numerosity
requirement on appeal, we are compelled to point out the inadequacy of the district court’s
numerosity analysis, which was contained within a footnote of its class certification order.
Specifically, the district court stated that “Hellerstedt does not challenge the requirement[]
of numerosity” and that, “[h]aving reviewed the pleadings and all supporting evidence
presented by the parties,” it concluded that “Plaintiffs[] have met the burden of establishing
numerosity.” While we make no comment as to whether numerosity in fact exists in this
case, we note that the district court’s superficial discussion demonstrates that it did not
undertake the necessary “rigorous analysis” of such requirement to independently confirm
its fulfilment. See Yates, 868 F.3d at 362 (internal quotation marks and citation omitted);
see also Vizena, 360 F.3d at 503 (recognizing that district courts must state in detail how each
of the Rule 23 requirements are met); Stirman, 280 F.3d at 563, n.7 (acknowledging the
obligation of district courts to independently analyze each of the Rule 23 requirements).
While a lengthy discussion regarding numerosity was likely not necessary given the
Defendant’s apparent concession on this point, the district court was obliged at a minimum
to identify the approximate number of potential class members in this matter and other
factors, if any, that bear on a determination of numerosity, as well as to explain the effect of
those factors on its conclusion. See Ibe, 836 F.3d at 528 (recognizing that to establish
numerosity, “[a] plaintiff must ordinarily demonstrate some evidence or reasonable estimate
of the number of purported class members” and that such factors as “geographical dispersion
of the class, the ease with which class members may be identified, the nature of the action,
and the size of each plaintiff’s claim” may be relevant to a numerosity analysis) (internal
quotation marks and citation omitted)). It erred in failing to do so.
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one of the claims in one stroke.” Id. (internal quotation marks and citation
omitted). Accordingly, what is significant with respect to a commonality
determination is “not the raising of common questions—even in droves—but,
rather the capacity of a class-wide proceeding to generate common answers apt
to drive the resolution of the litigation.” Id. (internal quotation marks and
citation omitted). Indeed, a single common question of law or fact is sufficient
if it meets the foregoing criteria. Ibe, 836 F.3d at 528 (citing Wal-Mart, 564
U.S. at 350). Further, to establish commonality, the plaintiff(s) must show
that “the class members have suffered the same injury.” Id. (quoting Wal-
Mart, 564 U.S. at 349) (internal quotation marks and citation omitted). While
the term “injury” is generally tied to the concept of damages, this court has
recognized that “an instance of injurious conduct, which would usually relate
more directly to the defendant’s liability . . . , may constitute ‘the same injury’”
for purposes of commonality. In re Deepwater Horizon, 739 F.3d 790, 810-11
(5th Cir. 2014). Thus, commonality may exist even where the plaintiffs’ alleged
damages are diverse. Id.
The district court’s discussion of whether the requirement of
commonality is satisfied in this case includes excerpts from various federal
court cases and an acknowledgement that it had “reviewed the pleadings and
all supporting evidence in this case[] and look[ed] beyond the pleadings to
understand the claims, defenses, relevant facts, and applicable substantive
law.” With no further stated analysis, the court concluded that Plaintiffs have
satisfied the commonality requirement by asserting the following common
questions of fact in this case:
whether incompetent detainees and insanity acquittees who are
committed to the custody of Hellerstedt’s Department for
restoration of their mental capacity so they may be tried or
committed for evaluation to determine if they can continue to be
confined, spend extended periods of time in county jails without

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receiving restoration or evaluation services; and, if so, whether
Hellerstedt uses a policy or procedure to ensure that any resulting
delay in the implementation of such services and the place and
manner in the implementation of those services are the product of
the judgment rendered by a qualified professional.
The Court further found that “[t]he answers to these questions of fact may
implicate a common question of law,” namely:
whether Hellerstedt violates the substantive due[]process rights of
incompetent detainees and insanity acquittees to be free from
conditions or restrictions of confinement that amount to
punishment absent criminal conviction by keeping such
individuals in county jail for extended periods of time while they
wait to receive restoration and evaluation services that are the
product of professional judgment.
Notably, however, the district court did not explain at all, much less with
specificity, how the determination of such questions would “resolve an issue
that is central to the validity of each one of the [putative class member’s] claims
in one stroke.” Yates, 868 F.3d at 361 (quoting Wal-Mart, 564 U.S. at 350)
(internal quotation marks omitted); see also Perry, 675 F.3d at 841 (finding
error in the district court’s failure to explain why the common questions
identified were sufficient); Vizena, 360 F.3d at 503. Moreover, it is difficult to
appreciate from a plain reading of the common questions identified by the
district court how such questions are even capable of being resolved on a class-
wide basis. The district court’s use of the phrase “extended periods of time”
as an integral part of its stated common questions is particularly problematic,
as such phrase is ambiguous. Not only is it unclear what period of time the
district court considers to be “extended,” but also whether a time period is
“extended” could vary in different circumstances. 17

17We also note, incidentally, that the common questions identified by the district court
contain no specific reference to the “first-come, first-served” policy to which Plaintiffs contend
all purported class members are subject. This is puzzling given that, as we understand
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The district court’s failure to substantively address actual or potential
differences in purported class members’ individual circumstances and claims
is also troublesome, since considering dissimilarities among claimants is
essential to determining whether even a single common question exists. 18 See
Wal-Mart, 564 U.S. at 358. While we do not take a position at this juncture on
whether critical disparities among putative plaintiffs exist here, we note that
it is incumbent on the district court to consider and discuss the facts of this
case, as well as the elements of Plaintiffs’ claims, prior to rejecting Defendant’s
argument that dissimilarities among individual claimants obviate
commonality. See Perry, 675 F.3d at 843-44 (stating that where a district court
rejects an argument that the merits of each purported class member’s claims
involve individualized inquiries that defeat commonality, it “must do so with
reference to the elements and defenses and requisite proof for each of the
proposed class claims”).
Considering the foregoing, although we recognize that adequate common
questions of law or fact may well exist in this case, we find that the district
court failed to conduct the necessary rigorous analysis to properly determine
whether the requirement of commonality is satisfied and further that the
common questions identified by the district court, as currently worded, are
insufficient to establish commonality.
2. Typicality and Adequacy of Representation
The Rule 23(a) requirements of typicality and adequacy of
representation are “closely related” in that “demanding typicality on the part

Plaintiffs’ allegations, it is such commonly applied policy and its effects that Plaintiffs
challenge.
18 In its class certification order, the district court’s treatment of Defendant’s

argument in this regard was limited to quoting portions of cases from various federal courts
that indicate that the presence of some variations among class members does not necessarily
render class certification inappropriate.
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of the representative helps ensure his adequacy as a representative.” Horton
v. Goose Creek Indep. Sch. Dist., 690 F.2d 470, 485 n.27 (5th Cir. 1982). To
demonstrate typicality, the parties seeking certification need not show “a
complete identity of claims.” Stirman, 280 F.3d at 562 (internal quotation
marks and citation omitted); see also FED. R. CIV. P. 23(a)(3). Rather, “the
critical inquiry is whether the class representative’s claims have the same
essential characteristics of those of the putative class.” Id. Moreover, the
typicality inquiry is not concerned so much with the “strengths of the named
and unnamed plaintiffs’ cases” as with the “similarity of legal and remedial
theories behind their claims.” Ibe, 836 F.3d at 528-29 (internal quotation
marks and citation omitted). Thus, if the claims of the named plaintiffs and
putative class members “arise from a similar course of conduct and share the
same legal theory,” typicality will not be defeated by factual differences.
Stirman, 280 F.3d at 562 (internal quotation marks and citations omitted).
Adequacy, in the Rule 23(a) context, concerns “class representatives,
their counsel, and the relationship between the two.” Stirman, 280 F.3d at 563
(quoting Berger v. Compaq Comput. Corp., 257 F.3d 475, 479 (5th Cir. 2001))
(internal quotation marks omitted). More specifically, adequacy encompasses
the following three inquiries: “(1) the zeal and competence of the
representatives’ counsel; (2) the willingness and ability of the representatives
to take an active role in and control the litigation and to protect the interests
of absentees; and (3) the risk of conflicts of interest between the named
plaintiffs and the class they seek to represent.” Slade v. Progressive Sec. Ins.
Co., 856 F.3d 408, 412 (5th Cir. 2017) (quoting Feder v. Elec. Data Sys. Corp.,
429 F.3d 125, 130 (5th Cir. 2005)) (internal quotation marks and citation
omitted). Since “absent class members are conclusively bound by the judgment
in any class action brought on their behalf, the court must be especially vigilant
to ensure that the due process rights of all class members are safeguarded
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through adequate representation at all times.” Berger, 257 F.3d at 480 (citing
Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 812 (1985)). Thus, to satisfy
the adequacy of representation requirement, “the class representatives [must]
possess a sufficient level of knowledge and understanding to be capable of
‘controlling’ or ‘prosecuting’ the litigation.” Ibe, 836 F.3d at 529 (quoting
Berger, 257 F.3d at 482-83) (internal quotation marks omitted).
As with numerosity, the district court conducted no analysis regarding
typicality or adequacy of representation, noting that Defendant had not
challenged such requirements. Nevertheless, the court indicated that it “[had]
reviewed the pleadings and all supporting evidence presented by the parties”
and concluded that “Plaintiffs[] have met the burden of establishing” typicality
and adequacy of representation. That the court found these requirements
satisfied is concerning given that it did not explicitly certify or recognize any
particular class representatives in its class certification order. Rather, the
court ordered Plaintiffs to “file an amended complaint on or before October 2,
2017, which shall include named plaintiffs to be appointed as class
representatives for the two classes.” 19
Plaintiffs maintain that “[b]ecause commonality is satisfied in this case
. . . the district court’s order effectively found that any class member’s claims
would be typical of all other class members.” Similarly, they contend that
“[b]ecause all class members are alleging that Defendant’s same common

19The district court presumably took such action because the named plaintiffs had
each been transferred to state hospitals at the time the district court ruled on Plaintiffs’
motion for class certification. We acknowledge that the brief duration of the purported class
claims may throw some complexity into the district court’s Rule 23(a) analysis. This,
however, does not excuse the court from conducting such analysis with respect to specific
class representatives identified by the court. While a purported class claim’s inherently
transitory nature may save it from mootness, we are aware of no authority suggesting that
this characteristic absolves such claim or the action that encompasses it from full compliance
with Rule 23(a).
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No. 17-50899
policy results in unconstitutional detention, the district court necessarily found
that any of them can adequately represent the interests of the class.” Such
arguments are without merit. While we recognize that there often is overlap
among the requirements of commonality, typicality and adequacy of
representation, 20 it does not follow that the latter two are necessarily satisfied
if the former is satisfied—which, at this point, has not been properly
determined. In other words, a finding of commonality does not excuse a
district court from appropriately analyzing whether typicality and adequacy of
representation exist. Moreover, such analysis must be conducted not with
respect to any potential claimant, but with respect to “the representative
parties.” See FED. R. CIV. P. 23(a) (emphasis added). Indeed, a district court
can only appropriately assess such factors as “the willingness and ability of the
representatives to . . . control the litigation and to protect the interests of
absentees” 21 with reference to one or more specific claimants, as opposed to any
claimant that could fall within the putative class.
Plaintiffs’ suggestion that the district court’s ability to amend its existing
certification order to approve new class representatives saves the order from
its deficiencies is likewise without merit. Rule 23 makes clear that a class
action may proceed “only if” each of the Rule 23(a) requirements and at least
one Rule 23(b) requirement is satisfied. See FED. R. CIV. P. 23; see also Baker
v. Washington Mut. Fin. Grp., L.L.C., 193 F. App’x 294, 296 (5th Cir. 2006)
(recognizing that “[a] class can be certified only if it meets each of the
requirements outlined in Rule 23(a)” (emphasis added)). Further, nothing in
Rule 23(c), which allows for the amendment of an order granting or denying
class certification, relieves plaintiffs seeking class certification from complying

20See Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 n.13 (1982).
21See Slade, 856 F.3d at 412 (quoting Feder, 429 F.3d at 130) (internal quotation
marks and citation omitted).
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with, or a court certifying a class from finding satisfaction of, the requirements
of Rule 23(a) prior to a class initially being certified. See FED. R. CIV. P. 23(c).
Accordingly, we find that the district court’s unsupported conclusion that
typicality and adequacy are satisfied, coupled with its failure to identify
specific class representatives and meaningfully analyze their fitness to serve
in such capacity, defies the mandate to conduct a rigorous Rule 23(a) analysis
including detailed written reasons that reference the facts and claims at hand.
See Yates, 868 F.3d at 362; Vizena, 360 F.3d at 503; Stirman, 280 F.3d at 563,
n.7. Thus, the district court erred on this basis also in certifying the
Incompetent Detainee and Insanity Acquittee classes.
b. Rule 23(b)(2)
In addition to satisfying the four Rule 23(a) prerequisites, to have a class
properly certified, the party seeking certification must show that one of the
three Rule 23(b) requirements is fulfilled. See FED. R. CIV. P. 23(b).
Satisfaction of any of the Rule 23(b) requirements is contingent on satisfaction
of each of the Rule 23(a) requirements in that a criterion for maintaining a
class action under any of the Rule 23(b) requirements is compliance with Rule
23(a). See id. (providing that “[a] class action may be maintained if Rule 23(a)
is satisfied” and if one of the three Rule 23(b) requirements is met). The district
court determined that the requirements of Rule 23(b)(2) 22 are satisfied here.
In light of our finding that the district court failed to conduct a rigorous
analysis of the Rule 23(a) requirements and, as a result, erred in certifying
both purported classes of plaintiffs, it would be premature at this juncture for
us to address the merits of whether Rule 23(b)(2)’s strictures are met.

As stated above, to obtain class certification under Rule 23(b)(2), the party seeking
22

certification must establish that “the party opposing the class has acted or refused to act on
grounds that apply generally to the class, so that final injunctive relief or corresponding
declaratory relief is appropriate respecting the class as a whole.” FED R. CIV. P. 23(b)(2).
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Given the current posture of this case, however, we take this opportunity
to briefly discuss what is required to comply with Rule 23(b)(2), the key to
which is “the indivisible nature of the injunctive or declaratory remedy
warranted—the notion that the conduct is such that it can be enjoined or
declared unlawful only as to all of the class members or as to none of them.”
Wal-Mart, 564 U.S. at 360 (internal quotation marks and citation omitted).
Rule 23(b)(2) certification is warranted if the following three requirements are
satisfied: “(1) class members must have been harmed in essentially the same
way; (2) injunctive relief must predominate over monetary damage claims; and
(3) the injunctive relief sought must be specific.” Yates, 868 F.3d at 366-67
(quoting Maldanado v. Ochsner Clinic Found., 493 F.3d 521, 524 (5th Cir.
2007)) (internal quotation marks omitted). We note that satisfaction of these
requirements is premised on “common behavior by the defendant toward the
class,” as opposed to the presence of common issues. Id. at 366 (quoting In re
Rodriguez, 695 F.3d 360, 365 (5th Cir. 2012)) (internal quotation marks
omitted). Thus, this court has found purported class members to have been
“harmed in essentially the same way” where they have each been subject to
the same allegedly wrongful policy, despite variations in the degree of damages
suffered by each. See Yates, 868 F.3d at 367-68 (finding that state prisoners
who were “subject to the same policy on climate control” were “harmed in
essentially the same way,” i.e., “by exposure to a substantial risk of serious
harm because of exposure to excessive heat”).
With respect to the Rule 23(b)(2) requirement that the injunctive relief
sought be specific, we have recognized that plaintiffs must “give content to the
injunctive relief they seek so that final injunctive relief may be crafted to
describe in reasonable detail the acts required.” Yates, 868 F.3d at 367 (quoting
Perry, 675 F.3d at 848) (internal quotation marks and citation omitted)
(emphasis added). While plaintiffs seeking class certification are not required
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No. 17-50899
to spell out “every jot and tittle of injunctive relief” at the class certification
stage, id. at 368, they must be able to explain “how a court could define or
enforce meaningful injunctive relief.” Maldonado, 493 F.3d at 525. We note,
therefore, that to comply with Rule 23(b)(2), Plaintiffs will, at minimum, have
to describe in some kind of detail from what actions or inactions Defendant
should be restrained. A general request that Defendant be restrained from
violating Plaintiffs’ Fourteenth Amendment protections is insufficient. 23
CONCLUSION
The district court failed to conduct a rigorous analysis of any of the Rule
23(a) factors and, therefore, erred in certifying the Incompetent Detainee and
Insanity Acquittee classes. Accordingly, we VACATE the district court’s class
certification order and REMAND this matter to the district court for further
proceedings consistent with this opinion.

23 Here, in their “Prayer for Relief,” Plaintiffs request that the District Court “[i]ssue
preliminary and permanent injunctive relief restraining Defendant from violating the
Fourteenth Amendment to the United States Constitution in relation to the confinement of
individuals awaiting competency restoration treatment and the confinement of persons found
not guilty by reason of insanity and awaiting evaluation and/or treatment services.” In turn,
the district court held that “[i]f Plaintiffs can establish that Hellerstedt violates the due-
process rights of the proposed class members, the court may render an injunction that will
state with specificity the acts to be restrained or required without the need for specific relief
tailored to each class member.”
22