The opinion of the court was delivered by: Judge Joan H. Lefkow
John Smentek, Malcolm Patton, Melvin Phillips, Rodell Sanders, and Frank Powicki (collectively, "plaintiffs") filed a putative class action against the Sheriff of Cook County and Cook County (collectively, "defendants"), alleging that defendants, in violation of 42 U.S.C. § 1983, maintain a policy of deliberate indifference to the plaintiffs' right to receive timely and appropriate dental care while confined at the Cook County Jail ("the jail"). Before the court is plaintiffs' motion to certify two classes pursuant to Federal Rule of Civil Procedure 23(b)(2) and (3). For the following reasons, the motion [#50] is granted in part and denied in part.
In 2006, four dentists and eight dental assistants served the approximately 10,000 detainees held at the jail. In 2007, this number was reduced, leaving only one dentist to serve the inmate population. Dental services were also limited to extractions. Over 200 inmates filed grievances regarding dental care in 2007. Since this time, the number of dentists has gradually increased, with two dentists serving the jail population in 2008. In July 2008, the U.S. Department of Justice concluded that the jail was not adequately providing dental services to its population. In March 2010, defendants entered into an agreed order with the United States to "ensure that inmates receive adequate dental care, and follow up, in accordance with generally accepted correctional standards of care." Ex. 8 to Defs.' Resp. at 37. Under the order, dental care is not to be limited to extractions, and defendants are to ensure that dental staffing is adequate to avoid treatment delays.
While confined at the jail, plaintiffs all experienced dental pain and significant delays in treatment, if treated at all. Smentek was housed at the jail between September 22, 2007 and March 14, 2008. He began to experience severe tooth pain about two weeks after entering the jail. He requested dental services several times but never received attention before he was transferred to the custody of the Illinois Department of Corrections ("IDOC"). While in IDOC custody, he had fourteen or fifteen teeth extracted. Patton has been housed at the jail since November 17, 2008. He experienced severe tooth pain and bleeding gums, for which he submitted over ten requests to see a dentist between January and April 2009. He then submitted grievances requesting dental services and only saw a dentist after he joined this suit. Phillips has been confined at the jail since February 12, 2008. Beginning in March 2009, upon experiencing severe tooth pain due to a loose filling, he submitted over ten requests and three grievances to see a dentist. He was only examined by a dentist in July 2009, after he sought to join this suit. Although the dentist concluded that two extractions were necessary, it took two additional months before this was done. Sanders was admitted to the jail on May 18, 2007 and remains confined there. He began experiencing tooth pain in fall 2008 and subsequently filed various requests and grievances requesting to see a dentist. In early 2009, with a swollen jaw and infected gums, he met with a doctor, who concluded that Sanders needed to see a dentist. On May 4, 2009, a dentist told Sanders that he needed a root canal and filling, but that he could only perform extractions. Powicki has been housed at the jail since February 24, 2010.*fn1 Shortly thereafter, he requested to see a dentist for a cracked tooth causing him pain on the right side of his head. He filed grievances on March 28, 2010 and May 8, 2010, complaining that his tooth was causing him earaches, headaches, and extreme pain. As of May 17, 2010, Powicki had not seen a dentist for this pain.
Plaintiffs argue that defendants' decision to decrease the number of dentists from four to one in 2007 caused them to experience unnecessary pain and unreasonable treatment delays. Plaintiffs seek to certify two classes. The first class, under Rule 23(b)(2), is defined as "[a]ll persons presently confined at the Cook County Jail who are experiencing dental pain and who have waited for more than seven days after having complained about that pain without having been examined by a dentist." Pls.' Mot. for Class Certification at 1. The second class, under Rule 23(b)(3), is defined as "[a]ll persons who, while confined at the Cook County Jail on and after January 1, 2007, made a request for treatment of dental pain and were not examined by a dentist within 7 days of that request." Id.
A party seeking to certify a class action must meet two conditions. First, the movant must show the putative class satisfies the four prerequisites of Rule 23(a): (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of representation. Fed. R. Civ. P. 23(a); Oshana v. Coca-Cola Co., 472 F.3d 506, 513 (7th Cir. 2006); Rosario v. Livaditis, 963 F.2d 1013, 1017 (7th Cir. 1992). Second, the action must qualify under at least one of the three subsections of Rule 23(b). Fed. R. Civ. P. 23(b); Rosario, 963 F.2d at 1017; Hardin v. Harshbarger, 814 F. Supp. 703, 706 (N.D. Ill. 1993). Here, plaintiffs seek certification under Rule 23(b)(2) and (3). Rule 23(b)(2) requires a finding 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). Rule 23(b)(3) requires a finding that "questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy." Fed. R. Civ. P. 23(b)(3).
Courts retain broad discretion in determining whether a proposed class meets the Rule 23 certification requirements. Keele v. Wexler, 149 F.3d 589, 592 (7th Cir. 1998). The moving party bears the burden of showing that the requirements for class certification have been met. Hardin, 814 F. Supp. at 706. The requirements of Rule 23 should be liberally construed to support the policy favoring the maintenance of class actions. King v. Kansas City S. Indus., 519 F.2d 20, 25--26 (7th Cir. 1975), .
Two courts in this district have already denied certification of a Rule 23(b)(3) class in the same or very similar circumstances as presented here. Defendants argue that these adverse decisions bar certification of plaintiffs' proposed classes. For collateral estoppel to apply, the following four conditions must be met: "(1) the issue sought to be precluded is the same as that involved in a prior action; (2) the issue was actually litigated; (3) the determination of the issue was essential to the final judgment; and (4) the party against whom estoppel is invoked was represented in the prior action." Adair v. Sherman, 230 F.3d 890, 893 (7th Cir.2000).
In Smith v. Sheriff of Cook County, the court declined to certify a class of "all persons who, while confined at the Cook County Jail on and after June 29, 2005, made a request for treatment of dental pain and did not receive timely treatment of a dentist." No. 07 C 3659, 2008 WL 1995059, at *1 (N.D. Ill. May 6, 2008), and reconsideration denied, 2008 WL 4866071 (N.D. Ill. July 16, 2008). In its initial opinion on the issue, the court concluded that the class did not satisfy the commonality and typicality requirements, as proving deliberate indifference is fact specific and requires each individual plaintiff to show that he required dental care, did not receive adequate dental care, and suffered significant injury due to the inadequate care. 2008 WL 1995059, at *2. Plaintiffs then sought reconsideration, arguing that they were challenging the "systemic inadequacy of dental services at the Cook County Jail," an issue common to all members of the proposed class. 2008 WL 4866071, at *1. While acknowledging that systemwide indifference could potentially be established in one proceeding, the court declined to reconsider its order, finding that causation and the impact of the systematic ...