United States District Court, W.D. Missouri, Central Division
Fernando J. Gaitan, Jr. United States District Judge.
before the Court are (1) Plaintiff's Second Motion for
Class Certification and Supporting Memorandum of Law (Doc.
No. 155) and (2) Plaintiff's Motion to Exceed Page Limits
(Doc. No. 165). As an initial matter, plaintiff's motion
to file an overlength reply (Doc. No. 165) will be
GRANTED, and the Court treats that brief
(Doc. No. 166) as properly filed.
filed the pending action on January 6, 2012. On April 9,
2012, the Court dismissed plaintiff's pro se complaint.
On appeal, on March 28, 2014, the Eighth Circuit vacated the
Court's order dismissing this case, and remanded for
further consideration. Counsel entered an appearance on
behalf of plaintiff on June 27, 2014. On August 15, 2014,
plaintiff filed his First Amended Class Action Complaint
(Doc. No. 42), alleging that defendants violated his rights
as an atheist by requiring him to participate in substance
abuse treatment programs at the MDOC such as Alcoholics
Anonymous (“AA”), which requires its participants
to recognize and rely upon a “Higher Power” to
remedy their problems with alcohol. Plaintiff has also sought
to list his religion as atheism on the facesheet to his
prison file, but MDOC has denied this request, responding
that atheism is a philosophy, not a religion. Plaintiff makes
claims on behalf of himself and a putative class under both
(1) 42 U.S.C. § 1983, through the First and Fourteenth
Amendments to the United States Constitution; and (2) the
Religious Land Use Institutionalized Persons Act
(“RLUIPA”), 42 U.S.C. § 2000cc-1. For both,
plaintiff claims that his and the putative class members'
rights were violated by (1) not being allowed to declare
atheism as their religion on their inmate facesheets; and (2)
being forced to participate in substance abuse treatment
programs that are based on a belief in a deity. On February
6, 2015, the Court entered an Order granting the state
defendants' motion to dismiss as to (a) claims against
the state defendants in their official capacities for
monetary damages, (b) claims against the state defendants in
their individual capacities under RLUIPA, and (c) claims
related to actions taken in 2006 as barred by the statute of
limitations. See Order, Doc. No. 83. In the same Order, the
Court dismissed all claims against defendant Salsbury.
Id. On May 8, 2015, the Court entered an Order
denying plaintiff's motion for class certification;
however, the Court indicated that if the plaintiff was able
to develop evidence during discovery supporting numerosity,
the Court may reconsider its position on that issue.
See Order. Doc. No. 96. On June 23, 2015, the Court
denied Gateway and Cummins' motion to dismiss.
See Order, Doc. No. 106.
was released from prison in December 2014. On September 26,
2016, the Court entered an Order (Doc. No. 153) denying
plaintiff's motion for partial summary judgment because,
among other things, his claims for declaratory and injunctive
relief were moot due to his release from prison. See
Order, Doc. No. 153, pp. 17-20. The Court granted summary
judgment to defendants on all claims for declaratory and
injunctive relief. The Court noted specifically at page 20 of
the Order that plaintiff would not be an appropriate class
representative as for claims for declaratory and injunctive
relief because he is no longer a member of the proposed
class. The Court also granted defendants' motions for
summary judgment as to claims based on the face sheet/intake
form, as well as plaintiff's claims as to individual
damages under RLUIPA. Plaintiff's remaining claims relate
to his individual treatment by the MDOC and Gateway
defendants in attempting to access secular treatment programs
October 3, 2016, plaintiff filed his second motion for class
certification. Plaintiff seeks to certify the following
classes under Fed.R.Civ.P. 23(b)(2):
All prisoners who are eligible or ordered to receive
substance abuse treatment in one of MDOC's substance
abuse treatment programs and who would object to the
faith-based requirements of those programs, if MDOC made
clear the availability of a genuinely secular,
non-faith-based program, and the prisoners could trust MDOC
not to prolong their custody because they objected to the
religious components or selected a secular path
All prisoners in MDOC's custody who do not believe in a
No. 153, p. 10. Notably, plaintiff seeks only declaratory and
injunctive relief as to these proposed classes.
to Rule 23(a) of the Federal Rules of Civil Procedure, one or
more members of a class may sue as representative parties on
behalf of all members only if: (1) the class is so numerous
that joinder of all members is impracticable; (2) there are
questions of law or fact common to the class; (3) the claims
or defenses of the representative parties are typical of the
claims or defenses of the class; and (4) the representative
parties will fairly and adequately protect the interests of
the class. Plaintiffs must also demonstrate they fall within
one of the types of classes defined in Rule 23(b).
bear the burden of demonstrating by a preponderance of the
evidence-that a proposed class meets the requirements for
class certification.” Fogarazzo v. Lehman
Bros., 263 F.R.D. 90, 98 (S.D. N.Y. 2009) (Scheindlin,
J.). “Rule 23 does not set forth a mere pleading
standard. A party seeking class certification must
affirmatively demonstrate his compliance with the Rule-that
is, he must be prepared to prove that there are in
fact sufficiently numerous parties, common questions of
law or fact, etc.” Wal-Mart Stores, Inc. v.
Dukes, 131 S.Ct. 2541, 2551 (2011) (emphasis in
original). “[C]lass determination generally involves
considerations that are enmeshed in the factual and legal
issues comprising the plaintiff's cause of action, . . .
[t]he necessity of touching aspects of the merits in order to
resolve preliminary matters, e.g., jurisdiction and venue, is
a familiar feature of litigation.” Id. at 2552
(internal citations omitted). “Though class
certification is not the time to address the merits of the
parties' claims and defenses, the ‘rigorous
analysis' under Rule 23 must involve consideration of
what the parties must prove.” Elizabeth M. v.
Montenez, 458 F.3d 779, 786 (8th Cir. 2006).
It may be necessary for the Court to “'probe behind
the pleadings before coming to rest on the certification
question.'” Dukes, 131 S.Ct. at 2551
(internal citations omitted).
Plaintiff's Motion for Class ...