Bad 8th Cir. Class Cert/11 Am. case

Although the plaintiffs sought only declaratory and injunctive relief, the Eighth Circuit reversed class certification based, in part, on concerns about sovereign immunity under the Eleventh Amendment in a case against officials in charge of Nebraska’s three residential mental health facilities.

Although the plaintiffs sought only declaratory and injunctive relief, the Eighth Circuit reversed class certification based, in part, on concerns about sovereign immunity under the Eleventh Amendment in a case against officials in charge of Nebraska’s three residential mental health facilities.  Sixteen present and former female patients allege rape and sexual abuse at these institutions, in violation of their rights under the First, Fourth, Fifth, Ninth and Fourteenth Amendments of the Constitution, Title II of the Americans with Disabilities Act, and Section 504 of the Rehabilitation Act.  Plaintiffs allege that state officers, in their official capacities, failed to protect female patients from sexual and physical assaults by male patients and staff and failed to adequately treat their mental illnesses and developmental disabilities.  However, the court of appeals held that adjudication of the claims of former residents could violate the state’s Eleventh Amendment immunity from damage claims and that the district court had abused its discretion in certifying a class that included former residents.  Elizabeth M. v. Montenez, 2006 WL 2346469 (8th Cir. Aug. 15, 2006).  The judges on the Eighth Circuit panel are Loken (Bush I), Bouman (Reagan), and Smith (Bush II). 

 A number of the plaintiffs in Elizabeth M. had also participated as plaintiffs in earlier litigation alleging sexual abuse at one of the Nebraska mental health facilities.  Caroline C. v. Johnson, 174 F.R.D. 452 (D. Neb. 1996).  Following class certification, the Caroline C. case settled, mandating appropriate mental health treatment for class members.  The consent decree in Caroline C. expired by its terms at the end of 2000.

 The Eighth Circuit acknowledged that former patients could be recommitted to one of the facilities, but concluded that their claims were moot.  The court of appeals rejected the plaintiffs’ contention that they should be permitted to represent the class because their claims are capable of repetition, yet evading review.  Instead, the court found that long-term residents would “better represent the class of present and future residents.” 

 The court of appeals stated, without citation or elaboration, that adjudication of the claims of former patients “for a declaratory judgment that prior assaults violated their rights is not necessary to the claims for injunctive relief but threatens to violate the State’s Eleventh Amendment immunity from damages claim.”  The court stated that a claim under the constitution for non-custodial mental health treatment “is highly dubious.”  The court criticized the complaint for failing to specify the statutory basis of a post-discharge claim in the ADA or Rehabilitation Act.   The Eighth Circuit concluded that the inclusion of both present and former residents in one broad class was “unmanageable.” 

 Caroline C., the named plaintiff in the earlier litigation, was one of two named plaintiffs in Elizabeth M. who currently reside at a state mental health facility.  Of those two, only Caroline C. alleged that she had been sexually assaulted, and this assault was from another resident.  The court of appeals held that the case required an individualized inquiry as to whether an employee of the facility violated her substantive due process right to safety.  The court stated: “The presence of a common legal theory does not establish typicality when proof of a violation requires individualized inquiry.”

 The court held that since there were no named plaintiffs who were current residents of the other two facilities who alleged abuse, patients at the other two facilities could not be included in the class.  Similarly, the court noted that there were no named plaintiffs who were current residents who alleged abuse by staff, and stated that claims of abuse by residents are not typical of claims of abuse by staff.

 The Eighth Circuit stated that the district court’s certification of the class “neither promotes the efficiency and economy underlying class actions nor pays sufficient heed to the federalism and separation of powers principles” established in Supreme Court cases. 

 The court completed vacated the class action certification, though it did suggest that Caroline C. could continue her case to improve conditions at the facility in which she resides.