Prison Phone Justice

Case3:13-cv-05878-EMC Document31 Filed04/16/14 Page1 of 21

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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AUDLEY BARRINGTON LYON, JR., et al.,
on behalf of themselves and all others
similarly situated,

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For the Northern District of California

United States District Court

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Plaintiffs,

No. C-13-5878 EMC
ORDER GRANTING PLAINTIFFS’
MOTION FOR CLASS
CERTIFICATION

v.
(Docket No. 14)

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UNITED STATES IMMIGRATION AND
CUSTOMS ENFORCEMENT, et al.,

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Defendants.
___________________________________/

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Plaintiffs in this putative class action are Audley Barrington Lyon, Jr.; Edgar Cornelio; Jose

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Elizandro Astorga-Cervantes; and Lourdes Hernandez-Trujillo. They have filed suit against the

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Department of Homeland Security (“DHS”), Immigration and Customs Enforcement (“ICE”) and

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certain employees of both agencies on the ground that their constitutional and statutory rights are

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being violated while they are held in government custody pending deportation proceedings. In

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particular, Plaintiffs assert that there are certain policies and practices in the Northern California

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immigration detention facilities (located in Contra Costa County, Sacramento County, and Yuba

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County) that “deny and severely restrict their ability to make telephone calls.” Compl. ¶ 2. This has

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impacted Plaintiffs’ ability to obtain counsel, consult with counsel, and gather information and

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evidence necessary for their immigration cases. In addition, the denial and restriction of telephone

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access has substantially prolonged their incarceration because, e.g., they have been forced to ask for

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continuances to retain counsel, consult with counsel, or prepare their cases.

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In the currently pending motion, Plaintiffs seek class certification. For the reasons explained
below, the motion is GRANTED.

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I.

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Plaintiffs filed their complaint on December 19, 2013. In their complaint, they allege as
follows.

For the Northern District of California

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United States District Court

FACTUAL & PROCEDURAL BACKGROUND

“ICE contracts with Yuba County, Sacramento County, and Contra Costa County to hold

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immigration detainees in the Yuba, Elk Grove and Richmond Facilities.” Compl. ¶ 33. These

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facilities are “geographically isolated from the San Francisco Immigration Court” as well as “the

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immigration attorneys who practice removal defense, most of whom are based in or near San

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Francisco.” Compl. ¶ 34. In addition, the facilities are often geographically isolated from detainees’

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family members or friends who might be able to help them in their immigration proceedings.

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Compl. ¶ 35. Because of this geographic isolation, communication by telephone is critical for

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detainees in these facilities. See Compl. ¶ 32.

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Apparently, detainees are not charged for making telephone calls to nonprofit legal service

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providers and certain government entities, see Compl. ¶ 41 (discussing the “free call program”).

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Otherwise, however, detainees appear to be charged for calls. In general, there are two ways to

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make a telephone call from the Yuba, Elk Grove, and Richmond facilities: (1) a detainee can place a

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collect call, or (2) a family member or friend can contact the telephone service provider for the

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detention facility to establish a prepaid account which funds a detainee’s calls to a specific telephone

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number. For the Yuba and Elk Grove facilities – but not the Richmond facility – there is also a third

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option, namely, a detainee can use his own money to purchase a calling card. See Compl. ¶ 42.

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The above system poses significant problems for detainees.
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For the Richmond facility, the third option is not available. As a practical matter, this means

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that a detainee will often have to rely on collect calls, and, not surprisingly, there is no

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guarantee that the receiving party will accept the collect call. For example, if a government

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entity is a receiving party, it likely will not accept a collect call. Even if a family member

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would want to accept a collect call, the cost may still be an obstacle.

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For the Northern District of California

United States District Court

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For all facilities, the cost of phone calls is unreasonably expensive, particularly as many

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detainees are indigent. See Compl. ¶ 46. For example, in the Richmond facility, “an

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intrastate, long-distance call costs $3.00 to connect plus $0.25 per minute, totaling $5.50 for

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a ten-minute call.” Compl. ¶ 46. The government admits this cost in its answer. See Ans. ¶

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46. Notably, when a call automatically disconnects after 15 minutes, a detainee has to pay a

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new connection fee to continue a conversation, thus increasing the cost of a call dramatically.

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Aside from cost-related issues, there are other problems with telephone access at the

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detention facilities. For example:

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A call can be completed “only if a live person answers the telephone and accepts the call.”

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Compl. ¶ 43. This means that detainees cannot leave voicemail messages. See Compl. ¶ 43.

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Also, detainees cannot complete calls to, e.g., offices that use “voicemail trees, i.e.,

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automated systems that require selection of options to reach a live person.” Compl. ¶ 43. In

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its answer, the government admits that “the telephone systems generally available to

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detainees at the Yuba, Sacramento and Contra Costa facilities require a live person to answer

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and accept any call; this feature is deemed necessary to prevent detainees, including criminal

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inmates not in ICE custody but housed at the same facilities, from calling any crime victims

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or leaving threatening messages.” Ans. ¶ 43.

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Calls can be made during a detainee’s “free time” only, but free time often takes place early

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in the morning or at night – i.e., not during business hours – and therefore detainees “are

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unable to reach law offices or any other offices.” Compl. ¶ 44. Also, free time occurs at

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inconsistent hours and therefore detainees “cannot reliably arrange to call people at particular

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times.” Compl. ¶ 44.

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Telephone calls automatically disconnect after 15 minutes. See Compl. ¶ 46. In their papers,

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Plaintiffs maintain that this is disruptive even if, as the complaint suggests, a detainee may

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make more than one 15-minute call in order to have a longer conversation. See Compl. ¶ 46.

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In its answer, the government denies that there is an automatic disconnect at the Contra

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Costa facilities; however, it admits that “a call placed from the Yuba facility or the

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Sacramento facility will be cut off after fifteen minutes in order to prevent ICE detainees and

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criminal inmates housed at the facility from monopolizing the phones.” Ans. ¶ 46.

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housing unit, and therefore detainees “have absolutely no privacy when making privileged

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calls to current or prospective attorneys, which are often about sensitive topics.” Compl. ¶

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45.
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Detainees cannot receive incoming calls. See Compl. ¶ 47. In its answer, the government

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admits that “attorneys cannot call or arrange calls with ICE detainees at the Contra Costa

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facility.” Ans. ¶ 52.

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For the Northern District of California

Telephones that detainees are allowed to use are located in the common areas of each

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United States District Court

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All four named Plaintiffs have submitted declarations which address many of the aboveidentified problems with telephone access at the facilities at issue.
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Mr. Lyon. Mr. Lyon has been in custody since approximately October 22, 2013.

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See Lyon Decl. ¶ 5. He is currently in custody at the West County Detention Facility in Richmond.

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See Lyon Decl. ¶ 5. He does not have an attorney. See Lyon Decl. ¶ 7 (explaining that he cannot

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afford one).

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Mr. Lyon has not been able to gather evidence to support his claim that he is eligible for a U

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visa as a victim of a violent crime. See Lyon Decl. ¶ 8. For example, he needs to get information

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from the East Palo Alto Police Department and the victim services unit of the San Mateo District

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Attorney’s Office, but neither accepts collect calls. See Lyon Decl. ¶ 8. As he is in a Richmond

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facility, he does not have the option of calling them by using a calling card or phone credit. See

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Lyon Decl. ¶ 8. And when Mr. Lyon’s wife has tried to get information from the police department

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herself, she has been rejected. See Lyon Decl. ¶ 10 (“I believe that my wife has thus far been unable

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to obtain the police report from the shooting because the East Palo Alto Police Department will only

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release it to me or my legal representative.”). Furthermore, Mr. Lyon’s wife is of limited assistance

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because Mr. Lyon is not able to call her by phone either. She cannot afford collect calls, and, as

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noted above, Mr. Lyon does not have the option of calling her by using a calling card or phone

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credit. See Lyon Decl. ¶ 9.

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For the Northern District of California

Mr. Astorga-Cervantes. Mr. Astorga-Cervantes has been in custody since

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approximately November 20, 2013. See Astorga-Cervantes Decl. ¶ 4. He is currently in custody at

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the Rio Cosumnes Correctional Center in Elk Grove. See Astorga-Cervantes Decl. ¶ 4. He does not

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have an attorney. See Astorga-Cervantes Decl. ¶ 8.

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United States District Court

2.

Mr. Astorga-Cervantes has had difficulty finding a lawyer to represent him. He does not

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have enough money in his inmate account to purchase phone credit to call a lawyer. See Astorga-

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Cervantes Decl. ¶ 7. He is not able to have his family help him find a lawyer because he cannot

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afford to call his family, and his family cannot afford collect calls. See Astorga-Cervantes Decl. ¶¶

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8, 11. While detainees are not charged for making calls to nonprofit legal service providers, see

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Compl. ¶ 41 (discussing the “free call program”), Mr. Astorga-Cervantes has not had success with

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the free call program – two organizations that he called for free told him that they were not

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accepting new cases. See Astorga-Cervantes Decl. ¶ 12.

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Mr. Astorga-Cervantes has also been unable to obtain documents that may assist in his

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release from custody – e.g., certificates and awards from his involvement with a domestic workers

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union. See Astorga-Cervantes ¶ 10. As noted above, he has not been able to get his family to help

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both because he cannot afford the cost of phone calls and because his family cannot afford the cost

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of phone calls. See Astorga-Cervantes Decl. ¶ 10.

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3.

Mr. Cornelio. Mr. Cornelio has been in custody since approximately September 17,

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2013. See Cornelio Decl. ¶ 3. He is currently in custody at the West County Detention Facility in

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Richmond. See Cornelio Decl. ¶ 3. He currently does not have counsel. See Cornelio Decl. ¶ 6

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(adding that he was previously represented by counsel but counsel withdrew after he could not

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afford to pay him).

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Mr. Cornelio has had difficulty finding a lawyer to represent him. Mr. Cornelio does not

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have the money to pay for phone calls, but, even if he did, there is no way to purchase a calling card

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or phone credit at the Richmond facility. See Cornelio Decl. ¶ 7. Accordingly, Mr. Cornelio must

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resort to collect calls. Most free legal service providers did not answer his calls because he was

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trying to make collect calls. Those who did answer told him that they were not accepting new cases.

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See Cornelio Decl. ¶ 7.

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immigration case because “there is no way for detainees to make international phone calls from [the

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Richmond facility].” Cornelio Decl. ¶ 10. For Mr. Cornelio, international phone calls are important

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because he is seeking asylum on the basis that he will be persecuted by gangs if he returns to

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Guatemala. See Cornelio Decl. ¶ 5.

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For the Northern District of California

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Ms. Hernandez-Trujillo. Ms. Hernandez-Trujillo has been in custody since

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November 14, 2012. See Hernandez-Trujillo Decl. ¶ 5. She is currently in custody at the Yuba

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County Jail in Marysville and was previously in custody at the Sacramento County Mail Jail. See

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Hernandez-Trujillo Decl. ¶ 4.

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United States District Court

In addition to the above, Mr. Cornelio has been unable to gather evidence in support of his

While Ms. Hernandez-Trujillo was in custody in the Sacramento County Main Jail, Ms.

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Hernandez-Trujillo’s ability to find legal representation was severely hampered. She was locked

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down in her call for 22 hours a day, and free time hours (when phone calls could be made) were

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inconsistent and often occurred late at night. See Hernandez-Trujillo Decl. ¶ 9. Also, because she

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could not afford the cost of phone calls, she would have to make collect calls, and law offices did

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not accept such calls. Nor did government offices, from whom Ms. Hernandez-Trujillo needed

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information in order to obtain evidence for her immigration case. See Hernandez-Trujillo Decl. ¶

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11. Ms. Hernandez-Trujillo was finally able to find legal representation (pro bono) after multiple

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continuances in her immigration case. See Hernandez-Trujillo Decl. ¶ 13.

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As noted above, Ms. Hernandez-Trujillo is now in custody in the Yuba County Jail in

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Marysville. She still cannot afford the cost of phone calls. See Hernandez-Trujillo Decl. ¶ 15

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(stating that the calls at the Yuba County Jail are even more expensive than the calls at the

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Sacramento County Main Jail). In addition, her attorney cannot afford to accept collect calls on a

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regular basis. See Hernandez-Trujillo Decl. ¶ 17. When Ms. Hernandez-Trujillo does call her

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attorney, the call is cut-off if no live person answers. See Hernandez-Trujillo Decl. ¶¶ 16-17. This

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means that Ms. Hernandez-Trujillo cannot leave voicemail messages. See Hernandez-Trujillo Decl.

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¶ 17. Also, when her attorney’s office used to use an automated phone tree, this prevented Ms.

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Hernandez-Trujillo was prevented from getting in touch with her counsel. Notably, when Ms.

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Hernandez-Trujillo asked for assistance to deal with this problem, her request was denied. See

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Hernandez-Trujillo Decl. ¶ 16.

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In addition to declarations from Plaintiffs themselves, Plaintiffs have submitted two

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declarations from immigration attorneys that detail their problems with communicating with clients

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because of telephone access issues at the detention facilities. See generally Lee Decl.; Vincent Decl.

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II.
A.

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Legal Standard
Plaintiffs seek certification of the following class pursuant to Federal Rule of Civil Procedure

23(b)(2): “All current and future immigration detainees who are or will be held by ICE in Contra
Costa, Sacramento, and Yuba Counties.” Mot. at 1.

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For the Northern District of California

United States District Court

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DISCUSSION

Under Rule 23(b)(2), a class action may be maintained if:
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Rule 23(a) is satisfied – i.e., “(1) the class is so numerous that joinder of all members is

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impracticable; (2) there are questions of law or fact common to the class; (3) the claims or

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defenses of the representative parties are typical of the claims or defenses of the class; and

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(4) the representative parties will fairly and adequately protect the interests of the class”; and

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“the party opposing the class has acted or refused to act on grounds that apply generally to

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the class, so that final injunctive relief or corresponding declaratory relief is appropriate

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respecting the class as a whole.”

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Fed. R. Civ. P. 23(a), (b)(2).
As indicated aby the above, Rule 23(b)(2) class actions are so-called “injunction” class

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actions, which stand in contrast to “damages” class actions brought pursuant to Rule 23(b)(3). See

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Frank v. United Airlines, Inc., 216 F.3d 845, 849 (9th Cir. 2000). Rule 23(b)(2) class actions are

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treated more liberally than Rule 23(b)(3) class actions to the extent the latter has strict requirements

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of mandatory notice to the class upon certification as well as an opportunity to opt out. See Fed. R.

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Civ. P. 23(c)(2). In contrast, in a Rule 23(b)(2) class action, notice may be given but is not required,

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and there is no requirement that a class member be given an opportunity to exclude himself or

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herself from the lawsuit. The Court also notes that, Rule 23(b)(2) was adopted precisely “in order to

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permit the prosecution of civil rights actions.” Walters v. Reno, 145 F.3d 1032, 1047 (9th Cir.

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1998); see also Cal. for Disability Rights, Inc. v. Cal. DOT, 249 F.R.D. 334, 349 (N.D. Cal. 2008)

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(Armstrong, J.) (stating that “[t]he Court’s analysis of the commonality requirement of Rule 23(a)

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necessarily touched on the propriety of certifying the class under Rule 23(b)(2)[;] [a]s noted, this

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case is precisely the sort of civil rights class action contemplated by Rule 23(b)(2)”). Rule 23(b)(2)

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only requires that the defendant act or refuse to act on grounds that apply “generally to the class.”

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Plaintiffs have the burden of demonstrating that they have met the Rule 23(a) and (b)(2)

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requirements. See Ellis v. Costco Wholesale Corp., 657 F.3d 970, 979-80 (9th Cir. 2011).

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B.

For the Northern District of California

United States District Court

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Class Definition
Before addressing the Rule 23(a) and (b)(2) requirements, the Court considers first the

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government’s challenge to the definition of the proposed class – i.e., “[a]ll current and future

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immigration detainees who are or will be held by ICE in Contra Costa, Sacramento, and Yuba

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Counties.” Mot. at 1. The government contends in particular that the proposed class definition is

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overly broad and not precisely defined.1 See Opp’n at 6.

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The Court rejects the government’s argument. Courts have held that “[a]n identifiable class

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exists if its members can be ascertained by reference to objective criteria,” Schwartz v. Upper Deck

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Co., 183 F.R.D. 672, 679 (S.D. Cal. 1999) – i.e., “[t]he order defining the class should avoid

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subjective standards (e.g., a plaintiff’s state of mind) or terms that depend on resolution of the merits

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(e.g., persons who were discriminated against).” Manual for Complex Litigation, Fourth § 21.222,

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at 270. See, e.g., Schwartz, 183 F.R.D. at 679 (stating that “[a] class description is insufficient . . . if

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membership is contingent on the prospective member’s state of mind”). Here, Plaintiffs’ proposed

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class definition does not use subjective standards or terms that depend on the resolution of the

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merits.

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Furthermore, “[a] class definition is sufficient if the description of the class is definite
enough so that it is administratively feasible for the court to ascertain whether an individual is a

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According to the Ninth Circuit, the requirements of Rule 23(a) and (b) are designed to
“‘designed to protect absentees by blocking unwarranted or overbroad class definitions.’” Narouz v.
Charter Communs., LLC, 591 F.3d 1261, 1266 (9th Cir. 2010). However, many district courts have
considered the issue of whether a class definition is overbroad independent of the requirements of
Rule 23(a) and (b).

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member.” Rodman v. Safeway, Inc., No. 11-cv-03003-JST, 2014 U.S. Dist. LEXIS 31438, at *53

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(N.D. Cal. Mar. 10, 2014) (internal quotation marks omitted). Here, it is easily administratively

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feasible to determine whether a person falls within Plaintiffs’ proposed class.

For the Northern District of California

United States District Court

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The government protests still that the “proposed class is overly broad [because it is] not

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limited to those individuals who are or will be ‘held in government custody pending deportation

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proceedings.’” Opp’n at 5 (quoting complaint; emphasis added). But contrary to what the

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government suggests, there is no need to add the phase “pending deportation proceedings” to limit

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the class definition. There is no real dispute that the reason why Plaintiffs and other ICE detainees

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are in the facilities in the first place is because of the potential for removal. As Plaintiffs argue, the

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government fails “to explain how or why distinctions in the procedural posture of detainees’

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immigration cases[2] have any significance for purposes of class certification.” Reply at 4.

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Furthermore, even if a detainee has gone through the IJ and BIA process, he or she may still have

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additional avenues for relief (e.g., judicial review). See 8 U.S.C. § 1252.

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Accordingly, the Court rejects the government’s contention that the proposed class definition

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is overbroad and turns now to the Rule 23(a) and (b)(2) requirements.3

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C.

Rule 23(a)

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1.

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Plaintiffs argue that the numerosity requirement is easily satisfied because “[t]he Facilities

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Numerosity: Class So Numerous that Joinder of All Members is Impracticable

hold a combined total of 500 to 600 immigration detainees on an average day.” Mot. at 9. Plaintiffs

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The government notes that “not all ICE detainees who are detained under 8 U.S.C. §
1225(b) or § 1231 in Yuba, Contra Costa, or Sacramento County will necessarily have or have had
proceedings before the San Francisco Immigration Court.” Opp’n at 7. Section 1225(b) concerns
the inspection of alien applicants for admission to the United States, “such as those apprehended at
the border or at a port of entry.” Rodriguez v. Robbins, 715 F.3d 1127, 1132 (9th Cir. 2013).
Applicants are screened and, if found inadmissible, shall be removed from the United States unless,
e.g., the alien is referred for an interview by an asylum officer. See 28 U.S.C. § 1225(b)(1)(A)-(B).
Section 1231 concerns the detention and removal of aliens ordered removed.
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The Court also notes that class definitions of actions maintained under Rule 23(b)(2)
generally command less precision than those brought under Rule 23(b)(3). See Manual for Complex
Litigation, Fourth § 21.222, at 270 (stating that, “[b]ecause individual class members must receive
the best notice practicable and have an opportunity to opt out, and because individual damage claims
are likely, Rule 23(b)(3) actions require a class definition that will permit identification of individual
class members, while Rule 23(b)(1) or (b)(2) actions may not”).

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add that joinder is impracticable not only because there is a large number of class members but also

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because class members are “transitory” (e.g., they may be transferred to other facilities, they may be

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removed, or they may be permitted to stay). See Mot. at 9.

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The Court finds Plaintiffs’ position on numerosity meritorious, particularly in the absence of
any challenge by the government.

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2.

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Class

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To determine whether named plaintiffs will adequately
represent a class, courts must resolve two questions: “(1) do the named
plaintiffs and their counsel have any conflicts of interest with other
class members and (2) will the named plaintiffs and their counsel
prosecute the action vigorously on behalf of the class?” Adequate
representation depends on, among other factors, an absence of
antagonism between representatives and absentees, and a sharing of
interest between representatives and absentees.

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For the Northern District of California

United States District Court

Adequacy: Representative Parties Will Fairly and Adequately Protect Interests of the

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Ellis, 657 F.3d at 985.

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Here, the government does not question the ability of Plaintiffs’ counsel to adequately

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represent the proposed class, see Opp’n at 7, and the Court finds that counsel is in fact adequate to

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represent the proposed class.

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As for Plaintiffs’ ability to adequately represent the proposed class, the government makes

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the following arguments: (1) Mr. Cornelio is not an adequate representative because he was removed

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to Guatemala on February 11, 2014, and he waived any right to appeal the removal order; (2) all

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four Plaintiffs cannot “adequately represent any ICE detainee who alleges that his or her detention

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has been prolonged by inadequate telephone access” because none “can evidence any causation

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between their detention and allegedly inadequate telephone access”; (3) all Plaintiffs except for Ms.

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Hernandez-Trujillo are not adequate representatives because they never asked to make a “private

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legal phone call that will not automatically cut off after a certain time period and that is free for any

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indigent detainee”; and (4) at best, Plaintiffs can only adequately represent persons detained by ICE

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pursuant to 8 U.S.C. § 1226 – and not, e.g., § 1231 or § 1225(b). Opp’n at 8-10. None of these

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arguments is compelling.

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1.

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As noted above, the government argues first that Mr. Cornelio is not an adequate

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representative because he was removed to Guatemala on February 11, 2014, and he waived any right

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to appeal the removal order.

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As a preliminary matter, the Court takes note that, even if the government were right that Mr.

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Cornelio was not an adequate representative, that still leaves three other Plaintiffs willing to take on

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the mantle of class representative.

For the Northern District of California

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United States District Court

Mr. Cornelio’s Removal

However, contrary to what the government argues, Mr. Cornelio is an adequate

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representative in spite of his removal and waiver of the right to appeal. The government does not

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dispute that, at the time the lawsuit was filed, Mr. Cornelio did have standing to pursue the instant

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action. While Mr. Cornelio’s standing may have mooted out his specific claim for relief, that does

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not automatically mean he can no longer be a class representative for other detainees who still want

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relief.

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As Plaintiffs point out, the critical case on point is Gerstein v. Pugh, 420 U.S. 103 (1975).

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Gerstein, like the instant case, was a class action. The plaintiffs were two individuals who had been

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charged with crimes by information, instead of indictment, under Florida law. Under Florida law, a

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person charged by information could be detained for a substantial period of time without getting a

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preliminary hearing to test probable cause. See id. at 105-06. The plaintiffs argued that they and

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other putative class members had a constitutional right to a timely judicial hearing on the issue of

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probable cause.

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In a footnote, the Supreme Court took into account that the plaintiffs had ultimately been

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convicted and therefore their pretrial detention had ended. Nevertheless, the Court still proceeded

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with the case because it

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belongs . . . 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. Pretrial detention is by nature temporary, and it
is most unlikely that any given individual could have his constitutional
claim decided on appeal before he is either released or convicted. The
individual could nonetheless suffer repeated deprivations, and it is
certain that other persons similarly situated will be detained under the
allegedly unconstitutional procedures. The claim, in short, is one that
is distinctly “capable of repetition, yet evading review.”

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At the time the complaint was filed, the named respondents
were members of a class of persons detained without a judicial
probable cause determination, but the record does not indicate whether
any of them were still in custody awaiting trial when the District Court
certified the class. Such a showing ordinarily would be required to
avoid mootness under Sosna. But this case is a suitable exception to
that requirement. The length of pretrial custody cannot be ascertained
at the outset, and it may be ended at any time by release on
recognizance, dismissal of the charges, or a guilty plea, as well as by
acquittal or conviction after trial. It is by no means certain that any
given individual, named as plaintiff, would be in pretrial custody long
enough for a district judge to certify the class. Moreover, in this case
the constant existence of a class of persons suffering the deprivation is
certain. The attorney representing the named respondents is a public
defender, and we can safely assume that he has other clients with a
continuing live interest in the case.

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9

Id. at 111 n.11 (emphasis added).

11
For the Northern District of California

United States District Court

10

The Supreme Court subsequently upheld Gerstein in County of Riverside v. McLaughlin, 500

12

U.S. 44 (1991). In McLaughlin, the plaintiffs brought a class action similar to that in Gerstein. See

13

id. at 47 (challenging the manner in which the County of Riverside provided probable cause

14

determinations to persons arrested without a warrant – in particular, the delay in providing such

15

determinations). The County challenged the plaintiffs’ standing, arguing that “the main thrust of

16

plaintiffs’ suit is that they are entitled to ‘prompt’ probable cause determinations” and, “[o]nce

17

sufficient time has passed, . . . it is too late for them to receive a prompt hearing and, under Lyons,

18

they cannot show that they are likely to be subjected again to the unconstitutional conduct.” Id. at

19

50-51.

20
21
22
23
24
25
26
27

The Supreme Court rejected the standing argument, explaining as follows:
The County does not dispute that, at the time the second amended
complaint was filed, plaintiffs James, Simon, and Hyde had been
arrested without warrants and were being held in custody without
having received a probable cause determination, prompt or otherwise.
Plaintiffs alleged in their complaint that they were suffering a direct
and current injury as a result of this detention, and would continue to
suffer that injury until they received the probable cause determination
to which they were entitled. Plainly, plaintiffs’ injury was at that
moment capable of being redressed through injunctive relief. The
County’s argument that the constitutional violation had already been
“completed” relies on a crabbed reading of the complaint. This case is
easily distinguished from Lyons, in which the constitutionally
objectionable practice ceased altogether before the plaintiff filed his
complaint.

28

12

Case3:13-cv-05878-EMC Document31 Filed04/16/14 Page13 of 21

1
2
3
4
5
6
7
8
9

For the Northern District of California

United States District Court

10

It is true, of course, that the claims of the named plaintiffs have
since been rendered moot; eventually, they either received probable
cause determinations or were released. Our cases leave no doubt,
however, that by obtaining class certification, plaintiffs preserved the
merits of the controversy for our review. In factually similar cases we
have held that “the termination of a class representative’s claim does
not moot the claims of the unnamed members of the class.” That the
class was not certified until after the named plaintiffs’ claims had
become moot does not deprive us of jurisdiction. We recognized in
Gerstein that “some claims are so inherently transitory 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.” In such cases, the “relation back” doctrine is properly
invoked to preserve the merits of the case for judicial resolution.
Accordingly, we proceed to the merits.
Id. at 51-52 (emphasis added).
Finally, in Wade v. Kirkland, 118 F.3d 667 (9th Cir. 1997), the Ninth Circuit followed the

11

principles articulated in Gerstein and McLaughlin. In Wade, the plaintiff brought a class action

12

challenging the working conditions of “chain gang” labor at the county jail where he was then

13

housed. While the plaintiff’s motion for class certification was pending, he was transferred to a

14

different facility. The district court denied the motion to certify as premature – i.e., because the

15

transfer had mooted out the plaintiff’s individuals claims. The question for the Ninth Circuit was

16

whether the plaintiff had standing on appeal to challenge the ruling on the class certification motion.

17

According to the Ninth Circuit, he did.

18
19
20

The Supreme Court in Geraghty recognized that even after mootness
of a named plaintiff’s own claim, a plaintiff may continue to have a
“‘personal stake’ in obtaining class certification.” The plaintiff in
Geraghty sought to have a denial of certification reversed; Wade
seeks a ruling on an outstanding class certification motion; each
“continues vigorously to advocate his right to have a class certified.”

21
22
23

As an appellate court, however, “we cannot review [class
certification] decisions before they are made.” We therefore remand
for the district court to decide the outstanding certification motion,
including whether Wade can continue as class representative or
whether other putative class members should be allowed to intervene.

24
25
26
27
28

On remand, the district court should decide the class
certification motion before proceeding further. We recognize that, in
some cases, it may be appropriate in the interest of judicial economy
to resolve a motion for summary judgment or motion to dismiss prior
to ruling on class certification. This is not one of those cases. Wade
purported to represent short-term inmates in a county jail, presenting a
classic example of a transitory claim that cries out for a ruling on
certification as rapidly as possible.

13

Case3:13-cv-05878-EMC Document31 Filed04/16/14 Page14 of 21

1

We note only that the claims have the potential for being
“inherently transitory”; whether the class claims are in fact “inherently
transitory” is ultimately a decision for the district court, and we do not
in any way suggest what result that court should reach. Indeed, we
could not, as the record at this point is devoid of any evidence of the
average length of detention in the county jail. We write only to clarify
that in making this determination, the district court must look at the
claims of the class as a whole, as opposed to Wade’s individual claims
for relief.

2
3
4
5
6

If the district court finds the claims are indeed “inherently
transitory,” then the action qualifies for an exception to mootness even
if there is no indication that Wade or other current class members may
again be subject to the acts that gave rise to the claims. This is
because there is a constantly changing putative class that will become
subject to these allegedly unconstitutional conditions. Moreover, if
transitory, the court could validly certify a class on remand, even
though the named plaintiff’s claims are already moot, since the
“relation back” doctrine will relate to Wade’s standing at the outset of
the case in order “to preserve the merits of the case for judicial
resolution.”

7
8
9

11
For the Northern District of California

United States District Court

10

12

On the other hand, if the district court finds that the class
claims are not sufficiently transitory to qualify for this exception to the
mootness doctrine, it should then consider whether putative class
members with live claims should be allowed to intervene.

13
14
15
16

Id. at 669-70 (emphasis added).
Accordingly, per Gerstein, MacLaughlin, and Wade, the question for the Court is whether

17

Plaintiffs’ class claims are “inherently transitory.” They are. As in Gerstein, the length of detention

18

cannot be ascertained at the outset and may be ended before class certification by various

19

circumstances. It is not certain that any given individual, named as a plaintiff, would stay in

20

detention long enough for a district judge to certify the class, and the constant existence of a class of

21

persons suffering the alleged deprivation is certain. See Gerstein, 420 U.S. at 111 n.11.

22

2.

23

The government argues next that all four Plaintiffs cannot “adequately represent any ICE

Prolonged Detention Caused by Limited Telephone Access

24

detainee who alleges that his or her detention has been prolonged by inadequate telephone access”

25

because none “can evidence any causation between their detention and allegedly inadequate

26

telephone access.” Opp’n at 8-9. According to the government, Mr. Lyon has been detained

27

because a statute, 8 U.S.C. § 1226(c), precludes him from seeking release on bond at this time. Mr.

28

Cornelio had been out on bond but that bond was revoked in September 2013 after he was arrested

14

Case3:13-cv-05878-EMC Document31 Filed04/16/14 Page15 of 21

1

and incarcerated for driving under the influence of alcohol in July 2013. Mr. Astorga-Cervantes has

2

been granted release on a bond. Finally, Ms. Hernandez-Trujillo has declined to seek release on a

3

bond. See Opp’n at 8-9.

4
5

length of detention. What is centrally at issue is access to counsel and other persons so that

6

Plaintiffs can effectively pursue vindication of their legal rights. Telephone access may affect the

7

likelihood of their ultimate success in avoiding deportation. This interest does not necessarily turn

8

on the length of detention.

For the Northern District of California

9

United States District Court

The government’s argument lacks merit. First, the key harm asserted here transcends the

To the extent part of the harm includes the lengthening of detention because of telephone

10

issues, Plaintiffs have presented evidence of such. According to Plaintiffs, the denial and restriction

11

of telephone access has substantially prolonged their incarceration because e.g., they have been

12

forced to ask for continuances to retain counsel, consult with counsel, or prepare their cases. See,

13

e.g., Hernandez-Trujillo Decl. ¶ 12; Cornelio Decl. ¶ 8. That a plaintiff may or may not be released

14

on bonds does not negate the fact that, whatever the length of their detention, the need for

15

continuances prolongs or did prolong the detention. As to those detainees denied bond in particular,

16

the deficient process in the facilities prolongs their detention. Reply at 9.

17

3.

18

In its third argument on adequacy, the government contends that all Plaintiffs except for Ms.

Request to Make Legal Phone Call

19

Hernandez-Trujillo are not adequate representatives because they never asked to make a “private

20

legal phone call that will not automatically cut off after a certain time period and that is free for any

21

indigent detainee.” Opp’n at 9.

22

Similar to above, the Court takes note that, even if the government were right that three of

23

the four Plaintiffs were not adequate representatives, that still leaves Ms. Hernandez-Trujillo willing

24

to take on the mantle of class representative.

25

In any event, the government’s position on inadequacy is problematic. The government

26

argues that “a detainee’s decision not to pursue such options [as identified above] will be a defense

27

in this litigation,” Opp’n at 9, but, even if so, that does not automatically mean there is an apparent

28

conflict of interest between Plaintiffs and other class members or that Plaintiffs will not prosecute

15

For the Northern District of California

United States District Court

Case3:13-cv-05878-EMC Document31 Filed04/16/14 Page16 of 21

1

the action vigorously on behalf of the class. See, e.g., Cummings v. Connell, 316 F.3d 886, 896 (9th

2

Cir. 2003) (stating that “this circuit does not favor denial of class certification on the basis of

3

speculative conflicts”); Blackie v. Barrack, 524 F.2d 891, 909 (9th Cir. 1975) (noting that class

4

members might have differing interests at later stages of litigation, but that “potential conflicts” do

5

not present a valid reason for refusing to certify a class; adding that “courts have generally declined

6

to consider conflicts, particularly as they regard damages, sufficient to defeat class action status at

7

the outset unless the conflict is apparent, imminent, and on an issue at the very heart of the suit”);

8

Allied Orthopedic Appliances, Inc. v. Tyco HealthCare Group L.P., 247 F.R.D. 156, 177 (C.D. Cal.

9

2007) (stating that “[c]lass certification will be inappropriate if fundamental conflicts of interest are

10

determined to exist among the proposed class members”; adding that “[a] conflict is ‘fundamental’

11

when it goes to the specific issues in controversy, or where . . . some plaintiffs claim to have been

12

harmed by the same conduct that benefited other members of the class, preventing the named

13

representatives from ‘vigorously prosecut[ing] the interests of the class through qualified counsel’”).

14

The fact that every class representative has not been harmed in the same way as others does not in

15

itself create a conflict precluding adequate representation.

16

The Court notes that, in some ways, the government’s argument here is not one of adequacy,

17

but rather typicality. More specifically, courts have generally held that, where a named plaintiff is

18

subject to a unique defense that threatens to preoccupy him or her, he or she may lack typicality.

19

See Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992) (stating that “a named

20

plaintiff’s motion for class certification should not be granted if ‘there is a danger that absent class

21

members will suffer if their representative is preoccupied with defenses unique to it’”; also

22

indicating that “‘class certification is inappropriate where a putative class representative is subject to

23

unique defenses which threaten to become the focus of the litigation’”). Here, even if there were a

24

defense to a particular plaintiff based on his or her failure to ask to make a phone call, nothing

25

suggests that such a defense would threaten to become such a focus of the litigation that the affected

26

Plaintiff would no longer be adequate representative for the class.

27

///

28

///

16

For the Northern District of California

United States District Court

Case3:13-cv-05878-EMC Document31 Filed04/16/14 Page17 of 21

1

4.

2

Finally, the government asserts that, at best, Plaintiffs can only adequately represent persons

3

detained by ICE pursuant to 8 U.S.C. § 1226 – and not, e.g., § 1231 or § 1225(b). (The government

4

admits that Mr. Cornelio was subject to removal under § 1231 but argues that he is still an

5

inadequate representative because, as discussed above, he has already been removed to Guatemala.

6

See Opp’n at 10.) This argument relates back to the government’s argument above that Plaintiffs’

7

class definition is overbroad because, e.g., it includes § 1231 and § 1225(b) detainees. See note 2,

8

supra.

Section 1226 Class

9

Similar to above, the current argument is not persuasive. While there may be some

10

differences when a detainee is subject to § 1231 or § 1225(b) as opposed to § 1226, post-removal

11

order detention pursuant to 8 U.S.C. § 1226(a) which provides for bond hearing), see Rodriguez v.

12

Hayes, 591 F.3d 1105, 1113-14 (9th Cir. 2010) (noting that Ҥ 1225(b) provides for discretionary

13

detention of aliens pending a determination of admissibility,” that “§ 1226 provides for both

14

discretion detention generally and mandatory detention for certain narrow categories of aliens

15

pending a determination of their removability,” and that “§ 1231(a) provides for mandatory

16

detention of aliens ordered removed during the 90 day removal period and discretionary detention

17

after the end of the removal period”), the government has failed to identify how this would create a

18

conflict of interest between Plaintiffs and other class members or cause a named Plaintiff to fail to

19

vigorously prosecute.

20

3.

21

“To show commonality, Plaintiffs must demonstrate that there are questions of fact and law

22

that are common to the class.” Ellis, 657 F.3d at 981. “‘[A]ll questions of fact and law need not be

23

common to satisfy [Rule 23(a)],’” but it is not sufficient “to merely allege any common question, for

24

example, ‘Were Plaintiffs passed over for promotion?’ Instead, [Plaintiffs] must pose a question that

25

‘will produce a common answer to the crucial question why was I disfavored.’” Id.; see also Wal-

26

Mart Stores, Inc. v. Duke, 131 S. Ct. 2541, 2551 (2011) (stating that “[c]ommonality requires the

27

plaintiff to demonstrate that the class members have suffered the same injury”). “What matters to

28

class certification . . . is not the raising of common questions – even in droves – but, rather the

Commonality: There Are Questions of Law or Fact Common to the Class

17

Case3:13-cv-05878-EMC Document31 Filed04/16/14 Page18 of 21

1

capacity of a classwide proceeding to generate common answers apt to drive the resolution of the

2

litigation.” Id. (internal quotation marks omitted).

3

In its opposition, the government makes two arguments related to commonality: (1) Plaintiffs

4

cannot show widespread actual injury, see Lewis v. Casey, 518 U.S. 343, 348-49 (1996) (“agree[ing]

5

that the success of respondents’ systemic challenge was dependent on their ability to show

6

widespread actual injury, and . . . the court’s failure to identify anything more than isolated instances

7

of actual injury renders its finding of a systemic Bounds violation invalid”); and (2) there is no

8

common or overriding policy that governs the Yuba, Elk Grove and Richmond facilities – rather

9

there are various practices at the three different facilities.

For the Northern District of California

United States District Court

10

As to the first argument, the government asserts that “those detainees within the proposed

11

class who are ineligible to seek relief from removal or who are awaiting removal proceedings cannot

12

[even] evidence the ‘actual injury’ required to contest their conditions of confinement.” Opp’n at

13

11. But this argument misses the point. Even those ineligible for relief from removal may still wish

14

to get the advice of counsel as there may be other avenues for relief. As for those detainees awaiting

15

removal proceedings, that is precisely when there is a need for adequate telephone access to get the

16

assistance of an attorney or others in order to contest removal or, at least, to see whether there is a

17

basis to contest removal. Moreover, this alleged injury is clearly widespread and not “isolated

18

instances” as in Lewis.

19

As for the second argument, Plaintiffs fairly point out that the government has admitted to at

20

least one significant common practice in all of the three facilities. More specifically, in its answer,

21

the government admits that “the telephone systems generally available to detainees at the Yuba,

22

Sacramento and Contra Costa facilities require a live person to answer and accept any call; this

23

feature is deemed necessary to prevent detainees, including criminal inmates not in ICE custody but

24

housed at the same facilities, from calling any crime victims or leaving threatening messages.” Ans.

25

¶ 43.

26

More fundamentally, the overarching claim is that ICE detainees in these facilities are denied

27

effective access to telephones and that this impedes communications with counsel, family, and

28

others necessary to protect and vindicate their legal rights. The fact that the precise practices among

18

For the Northern District of California

United States District Court

Case3:13-cv-05878-EMC Document31 Filed04/16/14 Page19 of 21

1

the three facilities may vary does not negate the application of a constitutional floor equally

2

applicable to all facilities. In this regard, the constitutional standard Plaintiffs seek to impose here is

3

structurally similar to the application of ICE’s National Detention Standards, which the government

4

admits applies to all three facilities. See Compl. ¶ 41; Ans. ¶ 46. As Plaintiffs argue, the nature of

5

the overarching constitutional standard Plaintiffs seek to apply here to various conditions found in

6

particular facilities is no different than cases in which a class-based challenge is brought against

7

systemic prison conditions. See, e.g., Williams v. City of Philadelphia, 270 F.R.D. 208, 222 (E.D.

8

Pa. 2010) (granting Rule 23(b)(2) class certification to claim bought by inmates contesting the

9

conditions of confinement in the Philadelphia Prison System); cf. Walters, 145 F.3d at 1047

10

(certifying a Rule 23(b)(2) class where plaintiffs alleged that forms used by INS on a nationwide

11

basis did not adequately advise them of their rights; noting that, “[w]hile the government correctly

12

observes that numerous individual administrative proceedings may flow from the district court’s

13

decision, it fails to acknowledge that the district court’s decision eliminates the need for individual

14

litigation regarding the constitutionality of INS’s official forms and procedures”).4

15

4.

16
17

Typicality: Claims or Defenses of Representatives Parties Are Typical of Claims or
Defenses of the Class

“To demonstrate typicality, Plaintiffs must show that the named parties’ claims are typical of

18

the class. The test of typicality is whether other members have the same or similar injury, whether

19

the action is based on conduct which is not unique to the named plaintiffs, and whether other class

20

members have been injured by the same course of conduct. Typicality refers to the nature of the

21

claim or defense of the class representative, and not to the specific facts from which it arose or the

22

relief sought.” Ellis, 657 F.3d at 984 (internal quotation marks omitted).

23
24
25
26
27
28

4

The commonality identified above is sufficient to support a class covering all three
facilities. However, the Court notes that, even if there were differences among the three facilities
(e.g., at the Richmond facility, a detaineee cannot purchase a calling card or phone credit), such that
there were significant concerns about commonality, the government has failed to explain why, at the
very least, there could not be certification of subclasses. See Staton v. Boeing Co., 327 F.3d 938,
956 (9th Cir. 2003) (“conclud[ing] that the district court was within its discretion to find the
commonality requirement of Rule 23(a)(2) met in this case” but adding that “[t]he district court in
all likelihood could . . . have declined to certify the overall class in favor of certifying discrete subclasses, so as to assure commonality”). No party, however, has argued for subclasses herein.

19

Case3:13-cv-05878-EMC Document31 Filed04/16/14 Page20 of 21

1

In its opposition, the government argues that Plaintiffs cannot establish typicality “[f]or the

2

same reasons that Plaintiffs cannot satisfy the adequacy and commonality prerequisites.” Opp’n at

3

13. For the reasons discussed above, the government’s typicality argument also fails.

4

D.

5

As noted above, for certification under Rule 23(b)(2), the party seeking certification must

6

show that “the party opposing the class has acted or refused to act on grounds that apply generally to

7

the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting

8

the class as a whole.” Fed. R. Civ. P. 23(b)(2) (emphasis added). Claims for individualized relief

9

do not satisfy Rule 23(b)(2). See Wal-Mart, 131 S. Ct. at 2557.

10

The key to the (b)(2) class 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.” In other words, Rule 23(b)(2)
applies only when a single injunction or declaratory judgment would
provide relief to each members of the class. It does not authorize class
certification when each individual class member would be entitled to a
different injunction or declaratory judgment against the defendant.

11
For the Northern District of California

United States District Court

Rule 23(b)(2)

12
13
14
15
16

Id.
In its opposition, the government largely rehashes its commonality argument with respect to

17

the (b)(2) requirement – i.e., “Plaintiffs do not challenge a single policy applying to all facilities, but

18

rather various practices amongst the facilities.” Opp’n at 13-14. But, as indicated above, the

19

government’s characterization is not accurate. Plaintiffs are not asking for any individualized relief

20

for each class member. Rather, they are asking for systemic changes consistent with a single

21

overarching constitutional standard that will be applicable to all class members in all these facilities.

22

That each facility may have to change its current policies in varying ways in order to comply does

23

not negate the singular nature of the injunction sought. As noted above, it is telling that prison

24

condition cases are often certified under Rule 23(b)(2) where a prison policy or procedure is

25

challenged. See Riker v. Gibbons, No. 3:08-CV-00115-LRH-RAM, 2009 U.S. Dist. LEXIS 35449,

26

at *17-18 & n.7 (D. Nev. Mar. 31, 2009) (finding certification appropriate under Rule 23(b)(2)

27

where plaintiffs “challenge[d] [Ely State Prison’s] medical system, which they allege subjects all of

28

them to a significant risk of injury and unnecessary infliction of pain”; adding that “[o]ther courts

20

Case3:13-cv-05878-EMC Document31 Filed04/16/14 Page21 of 21

1

have also certified classes under Rule 23(b)(2) when prisoners challenge the constitutionality of

2

prison conditions”); Williams, 270 F.R.D. at 222 (noting that “[n]umerous courts have held that Rule

3

23(b)(2) is an appropriate vehicle in actions challenging prison conditions”). The instant case is, for

4

all practical purposes, materially indistinguishable from such prison condition cases.

5
6

For the Northern District of California

CONCLUSION

For the foregoing reasons, the Court grants Plaintiffs’ motion for class certification. The

7

following class is certified pursuant to Rule 23(b)(2): “All current and future immigration detainees

8

who are or will be held by ICE in Contra Costa, Sacramento, and Yuba Counties.”

9

United States District Court

III.

Because a 23(b)(2) class is being certified, notice to the class is not required but may be

10

appropriate depending on the circumstances. See Fed. R. Civ. P. 23(c)(2) (providing that, “[f]or any

11

class certified under Rule 23(b)(1) or (b)(2), the court may direct appropriate notice to the class”). If

12

Plaintiffs believe that notice is appropriate, then they should immediately inform Defendants, and

13

the parties should meet and confer (either in person or by telephone) to determine whether they can

14

reach agreement as to whether notice should be given and, if so, what the terms of that notice should

15

be and how the notice should be distributed to the class.

16
17
18

A case management conference (“CMC”) shall be held on May 22, 2014, at 9:00 a.m. The
parties shall file a joint CMC statement one week prior to the conference.
This order disposes of Docket No. 14.

19
20

IT IS SO ORDERED.

21
22

Dated: April 16, 2014

23

_________________________
EDWARD M. CHEN
United States District Judge

24
25
26
27
28

21