SHREVE v. FRANKLIN COUNTY, OHIO (S.D.Ohio 12-14-2010)

y unconstitutional acts of a county judge and magistrate judge where none of the plaintiffs claimed to actually be involved in a case presently before either judge).

Lyons is illustrative of the standing problems faced by litigants alleging possible injury by future illegal conduct. There, the plaintiff filed suit against the City of Los Angeles seeking damages for injuries sustained when police officers used an allegedly illegal chokehold on him and seeking injunctive relief barring the police from using chokehold techniques in the future. Lyons, 461 U.S. at 98-99. At issue in the case was whether the plaintiff had standing to seek the equitable relief. The Court, relying on its earlier decisions in O'Shea and Rizzo v. Goode, 423 U.S. 362, 372 (1976) (holding that plaintiffs lacked standing to seek injunctive relief against allegedly unconstitutional police practices where allegations of future injury were "even more attenuated than those allegations of future injury found insufficient in O'Shea to warrant invocation of federal jurisdiction"), ruled that the plaintiff lacked standing to seek an injunction. The Court stated:

No extension of O'Shea and Rizzo is necessary to hold that respondent Lyons has failed to demonstrate a case or controversy with the City that would justify the equitable relief sought. Lyons' standing to seek the injunction requested depended on whether he was likely to suffer future injury from the use of the chokeholds by police officers. Count V of the complaint alleged the traffic stop and choking incident five months before. That Lyons may have been illegally choked by the police on October 6, 1976, while presumably affording Lyons standing to claim damages against the individual officers and perhaps against the City, does nothing to establish a real and immediate threat that he would again be stopped for a traffic violation, or for any other offense, by an officer or officers who would illegally choke him into unconsciousness without any provocation or resistance on his part. The additional allegation in the complaint that the police in Los Angeles routinely apply chokeholds in situations where they are not threatened by the use of deadly force falls far short of the allegations that would be necessary to establish a case or controversy between these parties.

Lyons, 461 U.S. at 105 (footnote omitted). According to the Court, Lyon's lacked standing because of "the speculative nature of his claim that he [would] again experience injury as the result of" the allegedly unconstitutional police practices. Id. at 109. To establish standing:

Lyons would have had not only to allege that he would have another encounter with the police but also to make the incredible assertion either, (1) that all police officers in Los Angeles always choke any citizen with whom they happen to have an encounter, whether for the purpose of arrest, issuing a citation or for questioning or, (2) that the City ordered or authorized police officers to act in such manner. Although Count V alleged that the City authorized the use of the control holds in situations where deadly force was not threatened, it did not indicate why Lyons might be realistically threatened by police officers who acted within the strictures of the City's policy. If, for example, chokeholds were authorized to be used only to counter resistance to an arrest by a suspect, or to thwart an effort to escape, any future threat to Lyons from the City's policy or from the conduct of police officers would be no more real than the possibility that he would again have an encounter with the police and that either he would illegally resist arrest or detention or the officers would disobey their instructions and again render him unconscious without any provocation.

Id. at 105-06. Finally, the Court held that standing to bring a claim for damages resulting from past illegal conduct did not necessarily establish standing to seek injunctive relief. See id. at 111.

The party invoking the jurisdiction of the federal courts has the burden of establishing each of the elements of standing. Lujan, 504 U.S. at 561. As the Supreme Court stated in Lujan:

[s]ince they are not mere pleading requirements but rather an indispensable part of the plaintiffs case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.

Id. (emphasis in original). "`[S]tanding cannot be inferred [] from averments in the pleadings, but rather must affirmatively appear in the record.'" White v. United States, 601 F.3d 545, 551-52 (6th Cir. 2010) (quoting Spencer v. Kemna, 523 U.S. 1, 10-11 (1998)). Accordingly, this Court will look to the pleadings and record presently before it to determine if Shreve and Worley have sufficiently alleged or demonstrated an imminent injury in fact. In so doing, the Court concludes that Shreve and Worley have made sufficient allegations, albeit by a slim margin, to confer standing at least at this early stage of the litigation.

Plaintiffs' amended complaint alleges that "[i]t is the custom, policy and standard operating practice of Franklin County Sheriff's corrections deputies to repeatedly use their tasers in a callous and sadistic manner . . . that violates the Constitutional rights of arrestees and inmates at the Franklin County Corrections Centers." (Am. Compl. ¶ 8.) The Amended Complaint also alleges specific examples purporting to illustrate the frequent unconstitutional use of tasers at the FCCCs. According to the Amended Complaint, in "case after case" tasers are used against inmates that are outnumbered by deputies. (Am. Compl. ¶ 51.) In other cases, tasers are used against inmates in mechanical restraints. (Am. Compl. ¶ 52.) The Amended Complaint further alleges that "[d]eputies also use the taser as a retaliatory weapon when detainees show verbal resistance or question authority by using profanity or making derogatory remarks to staff." (Am. Compl. ¶ 54.) Finally, the Amended Complaint alleges that nearly every use of the taser against inmates was found to be "justified" by Sheriff's Office officials upon review, (Am. Compl. ¶ 72), and that Shreve and Worley "along with all proposed class members, are at risk of having their constitutional rights violated through FCCC deputies' use of tasers." (Am. Compl. ¶ 243(a).)

In addition, the record contains videos depicting several taser incidents, including those of Shreve and Worley. Shreve is tasered while being held down by four deputies with his hands cuffed behind his back. Several other deputies are standing nearby. While sound from the video indicates that Shreve may have been attempting to bite one of the deputies, Plaintiffs are alleging that use of the taser against Shreve in those circumstances, i.e. while physically immobilized, was unnecessary and excessive. Worley is tasered for apparently raising his voice toward a team of deputies who have entered the cell where he is being held and for failing to obey their commands that he remove his clothing. Another video shows a woman being tasered for failing to remove a tongue piercing, despite being adamant that she cannot remove the piercing because it is too slippery. She requests a paper towel to aid her, but, instead of being provided the towel, is tasered. After she is tasered, the deputies provide her with the paper towel, which she uses to successfully remove the piercing.

These allegations and the evidence on the record are sufficient to establish a claim of imminent injury in fact, and thus confer standing at this preliminary stage in the litigation. Worley and Shreve have alleged a custom and policy whereby inmates at the FCCCs are routinely subjected to the pain and danger of being tasered in a manner that violates the constitution. According to the allegations, inmates are tasered with little provocation, when outnumbered by deputies, and when they pose no physical threat to the deputies. While the Court refrains from inquiring into the merits at this point in the litigation, the video evidence in the record is at least some support of these allegations, rather than mere conclusory accusations.

Lyons is distinguishable from the instant case in that it dealt with the possibility of future interactions between a citizen and police officers, whereas the instant case deals with inmates who presumably come into close contact with their guards on a daily basis. Shreve and Worley allege that they (at least while they remained incarcerated) were at risk of future deprivations of their rights and the record does reflect incidents supporting these allegations wherein inmates are tasered for seemingly innocuous reasons or no reason whatsoever. That inmates, including intoxicated or mentally impaired inmates, could be tasered, even when attempting to comply with commands of the deputies, suggests that any interaction with the deputies could result in an inmate being tasered. Finally, the Court also finds significant the fact that Shreve and Worley were actually tasered. From this showing, the Plaintiffs have presented some evidence upon which to conclude that they may suffer future injury in fact.

In support of its conclusion that Shreve and Worley have established standing to prospectively challenge the policies and procedures of the FCCCs, the Court has identified several cases in which inmates were found to have standing to challenge jail or prison policies that placed them at risk of injury. For instance, in Smith v. Arkansas Department of Correction, 103 F.3d 637 (8th Cir. 1996), inmates sought to enjoin a policy of the state corrections department that allowed dozens of inmates to be housed together in large barracks without supervision from prison staff. See id. at 640-41. According to the inmates, one of whom was stabbed during the night by another inmate, the policy placed them at risk of cruel and unusual punishment in the form of inmate on inmate violence. Id. at 640. In holding that one of the inmates had standing to challenge the conditions in the barracks (the inmate who had been stabbed had been transferred to another facility prior to the initiation of the suit), the Eighth Circuit found that the conditions that can be present in open barracks, e.g. "thievery, assaults, and hand-crafted weapons," supported a finding of an imminent injury in fact. See id. at 643-44. The court stated, "[w]e bear in mind . . . that an inmate `does not have to await the consummation of threatened injury to obtain preventive relief.'" Id. at 644 (quoting Farmer v. Brennan, 511 U.S. 825, 845 (1994) (internal quotation omitted)).

In Williams v. Wilkinson, 132 F. Supp. 2d 601 (S.D. Ohio 2001), Judge Marbley held that an inmate had standing to seek an injunction barring future application of prison disciplinary procedures that the inmate claimed violated Due Process requirements. See id. at 605. In so holding, Judge Marbley distinguished that case from Lyons on several grounds, including that "Mr. Lyons's potential for future harm was based on the realization of several incremental steps, each laced with speculation" whereas, in the case before him, "only one step would be necessary to reach the complained of conduct: an allegation by a corrections officer that the Plaintiff violated a prison rule." Id. at 605-06. Judge Marbley explained:

the odds of the Plaintiff coming into contact with a correction officer are much greater than Mr. Lyons coming into contact with a police officer in the city of Los Angeles. By virtue of his confinement, Mr. Williams is in continual contact with correction officers whose job it is to scrutinize closely his behavior for possible rule infractions.

Id. at 606. Further grounds for distinguishing Lyons included that:

the correction officer would be following procedure when he or she filed a report against Mr. Williams for an alleged violation, while the police officer in Lyons arguably would be committing an unconstitutional act by using physical force against a compliant citizen. As for the next step, a correction officer would have one choice once he or she believed that Mr. Williams had committed a rule infraction: to file a charge against him. Conversely, a police officer who had stopped Mr. Lyons could initiate physical contact in many different ways, or opt not to engage in physical contact but merely ticket the traffic violator.

Finally, the correction officer would be following [the prison]'s policy when he or she filed a charge against him, in contrast to the police officer in Lyons who would be in violation of city policy when he or she chose to place a nonresisting citizen in a chokehold.

Id.

The Court notes that the question of Worley and Shreve's standing is very close. As stated in Lujan, the burden of establishing standing will remain with them throughout the litigation, and the weight of that burden will increase as the litigation proceeds. The Court also notes that, as a practical matter, the intervention of the Department of Justice at this point means that claims for prospective relief resting on identical factual circumstances as those of Shreve and Worley will move forward regardless of the status of those individual Plaintiffs.

B. Class Certification

Having determined that Shreve and Worley have standing to seek injunctive relief, the Court now considers whether their proposed class should be certified under Rule 23. For the reasons that follow, the Court grants class certification on a provisional basis.

1. Rule 23

A plaintiff has the burden of proving class certification is proper. Beattie v. CenturyTel, Inc., 511 F.3d 554, 560 (6th Cir. 2007); see also In re Am. Med. Sys., 75 F.3d 1069, 1079 (6th Cir. 1996). The four prerequisites of a class action are found in Rule 23(a) and include the following:

(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.

FED. R. CIV. P. 23(a). These prerequisites are often referred to as the numerosity, commonality, typicality, and adequacy of representation requirements.

If a plaintiff satisfies the prerequisites of Rule 23(a), she must additionally "show that her suit falls within one of the three types of class actions under [Rule] 23(b)." Beattie, 511 F.3d at 560. Here, Shreve and Worley seek certification under Rule 23(b)(2), which calls for them to establish that "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole." FED. R. CIV. P. 23(b)(2).

The requirements for class certification are discussed in more detail below.

2. Rigorous Analysis and Avoidance of the Merits

In order to determine whether a plaintiff has met the standards of Rule 23, the Court will employ a "rigorous analysis." Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982); see also Beattie, 511 F.3d at 559; Sprague v. Gen. Motors Corp., 133 F.3d 388, 397 (6th Cir. 1998). This rigorous analysis, though, cannot include a determination of the merits of the case. The Supreme Court has held: "We find nothing in either the language or history of Rule 23 that gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action. Indeed, such a procedure contravenes the Rule." Eisen v. Carlisle Jacquelin, 417 U.S. 156, 177-78 (1974); see also Beattie, 511 F.3d at 560. Thus, the Court's rigorous analysis must be limited to the substance and structure of Plaintiffs' claims, rather than an inquiry into the merits. See Beattie, 511 F.3d at 561; Daffin v. Ford Motor Co., 458 F.3d 549, 553 (6th Cir. 2006) (holding that the court should not conduct a preliminary inquiry into the merits; noting that "whether the class members can win on the merits of the issue common to the class is not a factor in determining whether [the lead plaintiff's] claim is typical").

The Court has broad discretion in deciding whether to certify a class; however, the Court must exercise that discretion within the framework of Rule 23. See Gulf Oil Co. v. Bernard, 452 U.S. 89, 100 (1981).

3. Discussion

The Court will first discuss issues of class definition and membership followed by an analysis of the four requirements of Rule 23(a): numerosity, commonality, typicality, and adequacy of representation. Then, because Plaintiffs Shreve and Worley seek certification under Rule 23(b)(2), it will discuss the requirements of that subsection.

a. Class Definition Membership

Shreve and Worley propose the following class definition: "[a]ll persons who, now or at any future time during the pendency of this litigation, are or will be placed in the custody of the Franklin County Sheriff's Department at the Franklin County Corrections Centers." (Am. Compl. ¶ 240.)

"[I]mportant elements of defining a class include: (1) specifying a particular group at a particular time frame and location who were harmed in a particular way; and (2) defining the class such that a court can ascertain its membership in some objective manner." Edwards v. McCormick, 196 F.R.D. 487, 491 (S.D. Ohio 2000) (citing Crosby v. Social Sec. Admin., 796 F.2d 576, 580 (1st Cir. 1986)). These elements are met by the above-proposed definition. Membership in the class will be objectively ascertainable by a review of the records of the FCCCs. Obviously, class membership will fluctuate throughout the course of this litigation. However, that class membership may be transitory is of minimal significance because of the type of relief sought. Plaintiffs' objective is to enjoin alleged unconstitutional practices at the FCCCs. Accordingly, the focus of this litigation will be on how the FCCCs are run, not necessarily the identity of individual inmates.

Defendants assert that issues of class identification and administration are fatal to class certification. They contend that determining whether individual inmates and Shreve and Worley themselves are members of the proposed class will require individualized determinations to see if those inmates actually have been subjected to excessive force. Defendants' assertions on this point misconstrue the nature of Plaintiffs' prospective class and the nature of the class's claims. Plaintiffs have not alleged that every inmate at the FCCCs has been tasered or subjected to excessive force. Nor have they attempted to certify a class only of individuals who have been tasered. What they are alleging is that a policy or practice exists whereby inmates are routinely tasered in violation of their constitutional rights. According to them, the practice of using tasers in this manner is so pervasive that all inmates at the FCCCs are at risk of being injured. Accordingly, based on these allegations, the only prerequisite to class membership is incarceration at one of the FCCCs and whether a prospective class member has actually been subjected to excessive force is irrelevant to the consideration of class membership.

b. Requirements of Rule 23(a) i. Numerosity

Rule 23(a)(1) requires the class be "so numerous that joinder of all members is impracticable." FED. R. CIV. P. 23(a)(1). There is not a specific number that automatically qualifies a class for certification as "[i]mpracticability of joinder is not determined according to a strict numerical test but upon the circumstances surrounding the case." Senter v. Gen. Motors Corp., 532 F.2d 511, 523 n. 24 (6th Cir. 1976) (citing Cash, 434 F.2d at 571). When class size reaches substantial proportions, however, the numerosity requirement is usually satisfied by the numbers alone. In re Am. Med. Sys., 75 F.3d 1069, 1079 (6th Cir. 1996); see also Daffin v. Ford Motor Co., 458 F.3d 549, 552 (6th Cir. 2006).

Here, the record indicates that the average daily inmate population at the FCCCs in June 2010 was 1,910. (Herrell Aff. Ex. Al.) Further, since 2005, the monthly daily average number of inmates has never dropped below 1,700 inmates. ( See Herrell Aff. Ex. Al.) A class size of nearly 2,000 renders joinder of all members impractical and Shreve and Worley have thus met their burden of establishing numerosity. See, e.g., Afro Am. Patrolmen's League v. Duck, 503 F.2d 294, 298 (6th Cir. 1974) (holding that numerosity requirement was satisfied where putative class consisted of no more than thirty-five members). Defendants assert that, because Shreve and Worley have only identified eleven alleged instances where inmates were subjected to excessive force through the use of tasers, joinder of all plaintiffs would be practical. If Shreve and Worley's proposed class consisted only of inmates who have been tasered, this argument would potentially have merit. However, Shreve and Worley have proposed as a class all inmates presently incarcerated at the FCCCs. Based on that definition, the numerosity requirement is easily satisfied.

ii. Commonality

Rule 23(a)(2) requires the existence of "questions of law or fact common to the class." FED. R. CIV. P. 23(a)(2). However, the claims of the potential class members need not be factually identical. Bovee v. Coopers Lybrand, 216 F.R.D. 596, 608 (S.D. Ohio 2003) (citing Putnam v. Davies, 169 F.R.D. 89, 93 (S.D. Ohio 1996)). Furthermore, there need only be one question common to the class. Bovee, 216 F.R.D. at 608 (citing Sprague v. Gen. Motors Corp., 133 F.3d 388, 397 (6th Cir. 1998)). The mere fact that questions peculiar to individual class members could remain does not necessarily defeat a finding of commonality. Id. (citing Sterling v. Velsicol Chem. Corp., 855 F.2d 1188, 1197 (6th Cir. 1988); Bacon v. Honda of Am. Mfg., Inc., 205 F.R.D. 466, 476 (S.D. Ohio 2001)). On the other hand, "[i]t is not every common question that will suffice [as,] at a sufficiently abstract level of generalization, almost any set of claims can be said to display commonality." Sprague v. Gen. Motors Co., 133 F.3d 388, 397 (6th Cir. 1998). However, a finding of commonality is appropriate where there "is a common issue the resolution of which will advance the litigation." Id. Finally, conclusory allegations of commonality are insufficient to satisfy the burden of proof on certification. Bovee, 216 F.R.D. at 608 (citing Falcon, 457 U.S. at 157; Am. Med. Sys., 75 F.3d at 1081). Ultimately, as with the other prerequisites, Plaintiffs have the burden of proving to the Court that "questions of law or fact common to the class" exist.

As with the numerosity requirement, Plaintiffs satisfy the commonality requirement. Questions of fact and law common to all members of the class include whether there exists at the FCCCs a pattern or practice of the use of tasers in violation of the constitutional right of inmates to be free from excessive force. If Shreve and Worley are able to establish such a pattern or practice, such showing will advance the claims of all members of the class.

iii. Typicality

Rule 23(a)(3) requires that the "claims or defenses of the representative parties [be] typical of the claims or defenses of the class." FED. R. CIV. P. 23(a)(3). A plaintiff's claim is typical "if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members, and if his or her claims are based on the same legal theory." Am. Med. Sys., 75 F.3d at 1082 (citing 1 NEWBERG § 3-13, at 3-76). Typicality requires that the "representative's interests [are] aligned with those of the represented group, and in pursuing his own claims, the named plaintiff will also advance the interests of the class members." Id. In other words, "as goes the claim of the named plaintiff, so go the claims of the class." Sprague, 133 F.3d at 399. However, the plaintiff satisfying his or her own claim is not enough. "[T]he typicality requirement is not satisfied when a plaintiff can prove his own claim but not `necessarily have proved anybody else's claim.'" Beattie, 511 F.3d at 561 (quoting Sprague, 133 F.3d at 399). Finally, similar to the commonality requirement, the named plaintiff's claims do not have to be identical to the claims and defenses of the other members of the putative class, and need not always involve the same facts or law, provided there is a common element of fact or law. Beattie, 511 F.3d at 561 (citing Senter v. Gen. Motors Corp., 532 F.2d 511, 525 n .31 (6th Cir. 1976)); Putnam, 169 F.R.D. at 94.

Shreve and Worley's claim for injunctive relief is typical of the claims of the proposed class. The essence of this claim is that a policy or practice exists at the FCCCs that routinely puts inmates at risk of being subjected to excessive force through the use of tasers. If Shreve and Worley are able to advance or succeed on their claim by establishing that such a practice exists, they will also advance the claim made by the class, which is identical. Because the claims are identical, there is little likelihood that Shreve and Worley could prove their own individual claims for injunctive relief and not necessarily prove those of the other class members.

Defendants allege that because different inmates have different statuses, e.g. as arrestees, pretrial detainees, and convicted prisoners, and that different legal standards apply (Fourth Amendment for arrestees, Eighth Amendment for convicted prisoners, and Fourteenth Amendment for pretrial detainees), the claims of Shreve and Worley cannot be said to be typical of the claims of the entire class. It is true that determining whether a pattern or practice of constitutional violations exists will require the finder of fact to evaluate whether the use of tasers in individual cases is unconstitutional. This inquiry will possibly require the application of different constitutional standards depending on the status of the inmate involved and may require the creation of sub-classes. However, because the class's claim focuses on the policy and practice, resolution of the claim will not involve the finder of fact making determinations as to whether every individual class member was subjected to excessive force.

iv. Adequacy of Representation

Rule 23(a)(4) requires that "the representative parties will fairly and adequately protect the interests of the class." FED. R. CIV. P. 23(a)(4). The adequacy requirement "serves to uncover conflicts of interest between named parties and the class they seek to represent. A class representative must be part of the class and possess the same interest and suffer the same injury as the class members." Beattie, 511 F.3d at 562 (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625-26 (1997)). The adequacy requirement is essential to due process because the final decision is binding on all class members. See Am. Med. Sys., 75 F.3d at 1083 (citing Hansberry v. Lee, 311 U.S. 32 (1940)). The Sixth Circuit has developed two criteria for determining whether representation is adequate: (i) "[t]he representative must have common interests with unnamed members of the class" (common interests); and (ii) "it must appear that the representatives will vigorously prosecute the interests of the class through qualified counsel" (vigorous prosecution). Senter, 532 F.2d at 525.

The first requirement overlaps with the commonality and typicality requirements and acts to ensure that the representative has interests co-extensive with, rather than antagonistic to, the interests of the other class members. Day v. NLO, Inc., 144 F.R.D. 330, 335 (S.D. Oh. 1992). A plaintiff may not be an adequate representative if that plaintiff is subject to unique defenses that place him or her in a position that is antagonistic to the interests of the class. See Levels v. Akzo Nobel Salt, Inc., 178 F.R.D. 171, 179 (N.D. Ohio 1998). Here, the Court finds that the interests of Shreve and Worley are common to the other members of the class as nothing in the record indicates that Shreve or Worley's positions could somehow become antagonistic to the class.

For a plaintiff to adequately represent a class, it must appear that the plaintiff will vigorously prosecute the case to the benefit of itself and the class members alike. The representative plaintiff must have the financial resources and a sense of personal involvement in the litigation. Day, 144 F.R.D. at 335 (citing WRIGHT, MILLER KANE, FEDERAL PRACTICE AND PROCEDURE: CIVIL 2d § 1767 (1986)). Further, the representative plaintiff's counsel must be able to meet the demands of the litigation. Id. Plaintiffs counsel must be qualified, experienced, and able to conduct the litigation as necessary. Stout v. J.D. Byrider, 228 F.3d 709, 717 (6th Cir. 2000). As with the commonality prong, nothing in the record indicates that Shreve and Worley would not adequately represent the interests of the class. To the contrary, through their attorneys, they have thus far vigorously prosecuted this action. Their attorneys have also demonstrated their competence in representing Shreve and Worley's interests, and the interests of the proposed class.

c. Requirements of Rule 23(b)(2) for Certification

In addition to establishing each of the requirements of Rule 23(a), before a class can be certified, Plaintiffs must demonstrate that the class action falls within one or more of the types established by Rule 23(b). Here, Plaintiffs assert that their action is brought pursuant to Rule 23(b)(2), which states that "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole." FED. R. CIV. P. 23(b)(2). The Court agrees that Shreve and Worley have established an action under Rule 23(b)(2).

They allege a policy or practice, created and maintained by Defendants, that affects all of the members of the proposed class. Additionally, if the injunction sought by Shreve and Worley is granted, it will appropriately benefit all class members.

d. Appointment of Class Counsel

Pursuant to Rule 23(g), the Court appoints counsel for Plaintiffs as class counsel in this matter. As already stated in Section V.B.3.b.iv., supra, counsel for Plaintiffs have thus far shown competence and vigor in representing the interests of the proposed class. Furthermore, the Ohio Legal Rights Service, the employing agency of Plaintiffs' counsel, has been involved in numerous class actions and attorneys for the Ohio Legal Rights Service have significant experience in complex litigation and class action litigation. Finally, the Court finds that counsel for Plaintiffs have effectively investigated potential claims in this action, and have demonstrated that they will commit the necessary resources to representing the class.

e. Provisional Basis of Class Certification

The Court's grant of class certification is done on a provisional basis based on the limited record presently before it. As noted in Part V.A., supra, the burden will remain on Shreve and Worley to establish standing to seek injunctive relief as the litigation progresses. In the Court's view, the potential deficiencies in maintaining standing applicable to the class representatives are equally applicable to every member of the class.

VI. Conclusion

For the foregoing reasons, the Court GRANTS Plaintiffs' Motion for Class Certification and Appointment of Class Counsel (4); Interested Party the United States of America's Motion to Intervene (Doc. 45); the Motion of the National Fraternal Order of Police to File an Amicus Brief on Behalf of Defendants (Doc. 62.); and Plaintiffs' Motion for Leave to File Second Amended Complaint (Doc. 66). Plaintiffs' Motion to Compel Inspection (Doc. 14) is hereby DISMISSED. The Clerk shall add the United States as a full party, Plaintiff-Intervenor to this action and enter the United States' Complaint in Intervention on the docket. The National Fraternal Order of Police may appear in this action as an amicus curiae and file a brief and other memoranda of law on behalf of Defendants. A class consisting of "all persons who, now or at any future time during the pendency of this litigation, are or will be placed in the custody of the Franklin County Sheriff's Department at the Franklin County Corrections Centers" is hereby certified on a provisional basis and counsel for Plaintiffs are appointed class counsel to represent the class.

IT IS SO ORDERED.

DATED 12-14-2010