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Solitary Claims for Solitary Confinement: Predominance Defeats North Carolina Class Action Seeking Injunctive and Declaratory Relief for Inmates in Restrictive Housing

In Dewalt v. Hooks, 2022-NCSC-105, 879 S.E.2d 179, the North Carolina Supreme Court recently illustrated the difficulty in finding commonality between several fact-specific Constitutional claims for the purposes of certifying a class. The Supreme Court relied primarily on the U.S. Supreme Court’s holding in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011)—with one important distinction.

In Wal-Mart, the U.S. Supreme Court observed that when “a class seeks an indivisible injunction benefitting all its members at once, there is no reason to undertake a case-specific inquiry into whether class issues predominate.” Wal-Mart, 564 U.S. at 362–63. However, the Wal-Mart court’s analysis was based on Federal Rule 23(b)(2). 

Conversely, the Dewalt court observed that North Carolina’s Rule 23 differs from the federal rule and contains no analog to Federal Rule 23(b)(2). Accordingly, in North Carolina, all plaintiffs seeking class certification (even those seeking injunctive relief) must “demonstrate that each member has ‘an interest in either the same issue of law or of fact, and that issue predominates over issues affecting only individual class members.’” Dewalt, 2022-NCSC-105 ¶ 31 (quoting Crow v. Citicorp Acceptance Co., 319 N.C. 274, 277, 354 S.E.2d 459, 462 (1987)). Incapable of being resolved “in one stroke,” the N.C. Supreme Court determined that claims for “cruel and unusual punishment” in the context of restrictive housing in North Carolina’s prisons lack common predominating issues sufficient to satisfy the requirements for class certification.

On October 16, 2019, Rocky Dewalt, Robert Parham, Anthony McGee, and Shawn Bonnett, a group of inmates in the custody of the North Carolina Department of Public Safety (DPS), filed a putative class-action complaint in Wake County Superior Court against DPS challenging DPS’ policies and practice concerning solitary confinement. Together, Plaintiffs asserted that DPS’ policies amounted to cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution, and that Plaintiffs were in imminent danger of sustaining permanent psychological damage.

Plaintiffs challenged five restrictive housing settings: Restrictive Housing for Disciplinary Purposes (RHDP), Restrictive Housing for Control Purposes (RHCP), High Security Maximum Control (HCON), Restrictive Housing for Administrative Purposes (RHAP), and the first two phases of the Rehabilitative Diversion Unit (RDU.) In varying degrees of duration ranging from days to years, and with some differences in attendant conditions of confinement, these restrictive housing settings generally result in individuals facing 22 to 24 hours a day in a cell— about the size of a parking spot—where they perform nearly all activities of daily living. Usually, the only sounds prisoners in these conditions will hear from their cells are the slamming of cell doors and the intermittent screaming from other prisoners.[1]

At the trial court level, Plaintiffs alleged the existence of a class consisting of the current and future populations of North Carolina’s prisons who are or who may be subject to the various forms of restrictive housing, who are or who may be in restrictive housing for various reasons, and who suffered or may suffer the same harm.  In support of this argument, practitioners of psychiatry, psychology, and medicine argued in an amicus brief  that solitary confinement can exact a devastating toll on the mental condition of prisoners. These injuries include cognitive dysfunction, severe depression, memory loss, anxiety, paranoia, panic, hallucinations, and stimuli hypersensitivity.[2] Even when prisoners can overcome the psychological trauma of solitary confinement, medical evidence indicates that these individuals find themselves suffering from a host of serious physiological injuries, which include hypertension, heart palpitations, gastrointestinal disorders, headaches, and severe insomnia. Not only are these psychological and physical injuries devastating in their own right, studies have consistently shown that they are also more severe than the injuries associated with ordinary imprisonment.

The trial court rejected these arguments, determining that Plaintiffs failed to satisfy the “commonality” component of Rule 23 of the North Carolina Rules of Civil Procedure, which requires that class action claims be capable of resolution “in one stroke,” for two reasons.

First, the trial court explained, Plaintiffs failed to present evidence from which it could be concluded that the putative class, as a whole, suffered from the confinement. Specifically, Plaintiffs failed to present sufficient evidence connecting the practices and policies of DPS to actual harm or risks of harm. Plaintiffs attempted to support their contention that DPS’ practices actually caused the complained harm, but the documents used in support of that contention were limited correlational studies that, by the authors’ omission, could not and did not account for various confounding factors which could have affected the measured outcome. The only other evidence Plaintiffs relied on was a report by the Vera Institute, which actually commended DPS on its efforts to reform its use of restrictive housing. Vera’s report further noted that approximately one month after the conclusion of the study upon which it was based, DPS’ population in restrictive housing was down by 10 percent.

Second, the trial court concluded that the conditions of confinement were actually quite individualized. The court disagreed with the Plaintiffs contention that certification of such a broad, disparate class was appropriate because all persons in all restrictive housing settings are subject to certain, shared conditions, and thus, the particulars, such as their individual circumstances, distinctions among the restrictive housing settings, the reasons a person is placed in restrictive housing, and the length of their stay, are irrelevant.

The Court explained that Plaintiffs’ proposed class action actually challenges five separate and distinct housing classifications, with several fundamental differences, which are highly relevant to assessing a claim of “deliberate indifference.”  In particular, the trial court explained, each of the challenged housing classifications serve different penological purposes, vary in their length of stay, have different attendant conditions-of-confinement, and have different procedural rules.  Because a “deliberate indifference” claim is particularly fact-specific, the different lengths of time, different reasons for imposing restrictive housing (i.e. the penological objectives), and the different characteristics of each type of restrictive housing rendered class certification inappropriate.

The trial court further noted that Plaintiffs could not plausibly deny that there are a number of potential class members for whom the length of stay in restrictive housing would not be unconstitutional. Here, the Court referenced instances in which inmates only spent a few days in a restrictive housing setting, and noted that the average length of stay during the twelve months preceding the lawsuit—ranging from only eight days in RHAP to up to fourteen months for RDU—do not support Plaintiffs’ contention of widespread imposition of Restrictive Housing for months and years on end.

However, even assuming Plaintiffs could identify a common issue, the Court indicated that a class action would not be the superior method of adjudicating Plaintiffs’ claims. Such adjudication, the Court reasoned, would devolve into a series of mini trials on not only each of the challenged restrictive housing assignments, but also on the myriad other relevant considerations and defenses that undoubtedly would not apply uniformly to all potential class members, which the Court explained is contrary to the intent of Rule 23.

On direct appeal to the North Carolina Supreme Court, the Court affirmed the ruling of the trial court, but focused solely on commonality grounds. The Supreme Court determined that numerous considerations precluded Plaintiffs’ claims from being resolved “in one stroke.”

The Supreme Court noted that Plaintiffs failed to present evidence, such as specific studies and expert witness reports, supporting their claim that DPS’ policies and practice create a uniform risk of harm to individuals assigned to each of the challenged restrictive housing settings. This lack of evidentiary support, the Court explained, distinguished Plaintiffs’ claims from the federal cases upon which they relied. See Parsons v. Ryan, 754 F.3d 657, 669, 678 (9th Cir. 2014) (presenting numerous expert reports and ten specifically defined policies to which all class members were subjected); see, e.g., Braggs v. Dunn, 257 F. Supp. 3d 1171, 1236 (M.D. Ala. 2017); Davis v. Baldwin, No. 3:16-CV-600-MAB, 2021 WL 2414640 (S.D. Ill. June 14, 2021). Based upon this minimal evidence, the Supreme Court determined, the trial court did not abuse its discretion in concluding Plaintiffs failed to establish a common issue capable of resolution in one action.

The Supreme Court also emphasized that a class action would be inappropriate because, for a deliberate indifference claim to succeed, a claimant must show the lack of a “legitimate penological justification” for the conditions in issue. Here, the Supreme Court determined, each challenged housing setting served a distinct purpose. Specifically, the Supreme Court explained, RHDP is used exclusively for disciplinary purposes and is reserved for incarcerated individuals who have committed a disciplinary infraction, while RHAP serves administrative purposes, such as to protect staff, minimize the risk of escape, and preserve order. Unlike both RHDP and RHAP, the purpose of RHCP is to manage incarcerated individuals who have demonstrated a risk to the operations of a facility. Alternatively, HCON is reserved for individuals who pose the most serious threat and require an increased level of security over that offered by the other settings. Finally, the purpose of RDU is to discourage unwanted behaviors through appropriate consequences and positive reinforcement. The penological purposes served by each housing setting thus inform the placement of an individual into the appropriate classification, which necessarily requires an individualized assessment. Because Plaintiffs’ claim would involve a case-by-case assessment of each housing condition, the Supreme Court determined that class certification was inappropriate.

Finally, the Supreme Court highlighted that the attendant conditions of each restrictive housing setting vary significantly, are relevant to a conditions-of-confinement claim, and prevent a finding that plaintiffs established a common predominating issue. Offenders assigned to RHAP and RHDP may receive an unlimited number of one-hour noncontact visits, while individuals in RHCP and HCON are limited to two visits every thirty days. The record also highlights differences in which individuals in restrictive housing settings can interact with other inmates, including by location, whether restrained or unrestrained, frequency, and duration. Offenders placed in RDU, for instance, may have recreation time in an open yard with other inmates and access the gym. Individuals placed in the other restrictive housing settings, however, are limited to outdoor recreation, and the classifications differ on whether individual or group recreation is permitted.

The Supreme Court also noted that the availability of in-cell activities varied greatly among the restrictive housing settings. The degree to which individuals in restrictive housing can participate in cell study programs and other types of stimulating activities varies by housing assignment. Placement in RDU affords individuals the opportunity to complete educational courses, receive high school and college credit, and participate in short-term work assignments similar to those offered in general population. Alternatively, offenders assigned to RHAP have access to a portable library, pastoral counseling, and cell-study materials.

The Supreme Court concluded by noting whether there is a “substantial risk of harm” depends significantly on the penological purposes served, the procedural safeguards, the duration and length of stay, and the relevant attendant circumstances to each restrictive housing assignment. Thus, the Court reasoned, the fundamental distinctions and individual issues identified by the trial court were material and far from collateral, rendering class certification inappropriate.

The Supreme Court’s opinion, however, was not unanimous. In dissent, Justice Earls, joined by Justice Hudson, noted that North Carolina still allows people to be placed in solitary confinement indefinitely, and that Plaintiffs were challenging this system “as a whole.” Justice Earls explained that the trial court mischaracterized Plaintiffs’ argument as “depend[ing] greatly on the individual class member’s experiences in the various restrictive housing settings.” Instead of addressing Plaintiffs’ argument, which requires that this State’s solitary confinement policy be “taken as a whole,” Justice Earls criticized the majority for its analysis of the policy’s administrative classifications for solitary confinement, the varied average lengths of time each person is kept in solitary confinement, and the varied reasons a person may be subjected to such confinement, among other things. Justice Earls contended that none of these factors are relevant to a class certification motion in a case that challenges a statewide policy “as a whole.”

Justice Earls also explained that it did not matter “how well supported by the evidence the trial court’s factual findings about the various classifications of confinement may be.” Instead, Justice Earls argued, “‘what all members of the putative class and subclass have in common is their alleged exposure, as a result of specified statewide . . . policies and practices that govern the overall conditions of . . . confinement, to a substantial risk of serious future harm . . . .’” Parsons, 754 F. 3d. at 678. The legal significance of this detention policy for Plaintiffs’ class certification motion, Justice Earls contended, is that Plaintiffs must show that a large number of individuals are subject to the same treatment, namely, 22 to 24 hours of isolation inside a cell for an indefinite amount of time; accordingly, as a legal matter, those individuals can request the same type of relief. Justice Earls explained that Plaintiffs satisfied this burden.

Justice Earls also criticized the trial court for improperly addressing the merits of Plaintiffs’ claims when it found there was not enough evidence to show the “Department’s [solitary confinement] policies and practices actually caused the complained of harm[.]” In North Carolina, Rule 23 does not ask whether the plaintiff will prevail on the merits and any inquiry into the merits of a case should be limited to issue that are necessary to determine the appropriateness of class certification. At this stage, Justice Earls explained, Plaintiffs were only required to show that North Carolina’s statewide solitary confinement policy and practice exposes class members to a common risk of harm, not whether this exposure occurred or rises to the level of a constitutional violation. Justice Earls argued that the evidence submitted by the plaintiffs met this burden because at this stage all they seek to establish is that a group of people within North Carolina prisons may be exposed to a risk of harm because they spend 22 to 24 hours a day inside a cell.

Lastly, Justice Earls concluded by noting the class here was not based on the individual circumstances of each Plaintiff. Instead, Justice Earls explained, the class is based on a solitary confinement policy that subjects people to 22 to 24 hours a day in a cell, for an unlimited number of days. Plaintiffs, Justice Earls noted, all seek the same type of relief, namely an injunction and declaratory judgment that the state constitutional guarantees mean that solitary confinement be used only as a last resort and for the shortest time necessary. Justice Earls argued whether plaintiffs provided correlational or observational evidence is not relevant to this inquiry because all that is necessary to establish the grounds for class certification is that there is a group of people alleged to be exposed to the same treatment of little to no social interaction or environmental stimulation for 22 to 24 hours a day inside a cell.

Notwithstanding the arguments of Justice Earls, the Dewalt decision indicates that challenging an institution “as a whole” may be insufficient for class certification purposes when the individuals within that institution are there for different reasons, are exposed to different levels of treatment, and face potentially different levels of harm. In the broader context of class actions as a whole, Dewalt stands as a sterling reminder that what the rules say matter, and distinctions exist between the federal and some state rules of civil procedure. In North Carolina state court, at least, plaintiffs seeking class certification must demonstrate predominance, even if only seeking injunctive relief.

[1]  Terry A. Kupers, Isolated Confinement: Effective Method for Behavior Change or Punishment for Punishment’s Sake?, The Routledge Handbook for Int’l Crime & Just. Studies 213, 215-16 (Bruce A. Arrigo & Heather Y. Bersot eds., 2014).

[2] Craig Haney, Mental Health Issues in Long-Term Solitary and “Supermax” Confinement, 49 Crime & Delinq. 124, 130-31, 134-35 (2003); Peter Scharff Smith, The Effects of Solitary Confinement on Prison Inmates: A Brief History and Review of the Literature, 34 Crime & Just. 441, 488–90 (2006).

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January 24, 2023 Jeffrey Steven McConnell Warren Christopher Flurry
Posted in  Class Action Basics