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Orr v. Elyea

November 16, 2009


The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge


On April 5, 2009, Plaintiffs filed an Amended Motion to Certify Class (#47). Defendant Wexford Corporation filed its Response (#61) on May 1, 2009. Defendants Willard O. Elyea and Michael Puisis filed their Response (#76) on June 22, 2009. For the following reasons, Plaintiffs' Amended Motion to Certify Class (#47) is DENIED.


Plaintiffs' Motion

In its Amended Motion to Certify Class (#47), Plaintiffs note that all of the current Plaintiffs are either residents or former residents of the Illinois Department of Corrections (IDOC) and have each been diagnosed with Hepatitis C and have elevated liver enzymes. Plaintiffs identify the class as IDOC inmates who at some point during their incarceration had Hepatitis C and elevated liver enzymes but received no Hepatitis C treatment. However, Plaintiffs then go on to break down the class into four subgroups: (1) former residents who have been released but did not receive treatment while incarcerated; (2) those residents with a genotype susceptible to treatment within 12 weeks and who have more than 12 weeks to stay; (3) those residents with genotypes requiring 48 week treatment with more than 48 weeks remaining on their sentence but who are not receiving treatment; and finally (4) those with a genotype indicating a 48 week treatment who have less than 48 weeks remaining on their period of incarceration. Plaintiffs also claim there could possibly be another subgroup of persons of either genotype who have been diagnosed within 12 weeks of their release date.

Plaintiffs then discuss the statutory requirements for class certification. Plaintiffs claim "[t]he class is numerous in that it represents something in excess of 2000 individuals and because of the identity issues notified above, it is not practical for the Plaintiffs or counsel to contact each of those individuals and request that they join in individual suit." Plaintiffs claim that there are identical issues of fact and law as to each of the Plaintiffs: a resident of the IDOC with Hepatitis C. The issues will be identical among the individuals in the various "sub-classes" and among the class as an entire "entity."

Plaintiffs contend that the ability to maintain the class is strong because the position of the Defendants is the same to each and every Plaintiff, thus making a final ruling applicable to all. Notice is met because the majority of the Plaintiffs are in Defendants' custody and many of those out of custody are still under mandatory supervised release. Kent Heller will act as Plaintiffs' class counsel.

Defendants' Response

Defendants argue that Plaintiffs have not established the prerequisites for maintaining a class under Rule 23:

(1) Commonality- Defendants believe Plaintiffs have framed the issue too broadly, as not all of the inmates will have less than one year remaining on their sentence and not all the inmates will be candidates for Hepatitis C treatment.

(2) Typicality- Every Plaintiffs' individual circumstances are going to be different in terms of their particular genotype, length of sentence, whether they are candidates for treatment in the first place, whether they were offered treatment, whether they refused treatment, and whether there is a gap in incarceration.

(3) Adequacy- No specific class representatives have been named. No affidavits or other evidence has been provided to demonstrate that any of the named Plaintiffs fit into the class or subclasses set forth in the motion. It is unknown which of the Plaintiffs were affected by the policy, what their treatment regimen was, and the nature of their alleged Hepatitis C. Plaintiffs counter, however, that the IDOC medical department will not release the records to them out of privacy concerns. Defendants also point out that, of the 165 Plaintiffs, 56 are no longer incarcerated, making it difficult to conceive how they could adequately represent the Rule 23(b)(2) class seeking injunctive relief as their release from incarceration renders such claims moot.

(4) Questions of Law and Fact - Defendants argue that the question of deliberate indifference under the Eighth Amendment is a case-by-case fact specific problem. Defendants would also have the court take notice of Judge Harold A. Baker's decision in Roe v. Sims, 06-CV-3034, where he ...

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