abilities, to communicate in the English language.
The Court has broad discretion to determine whether a particular action justifies certification under Rule 23 of the Federal Rules of Civil Procedure. Horton v. Goose Creek Ind. School Dist., 690 F.2d 470, 483 (5th Cir. 1982), cert. denied, 463 U.S. 1207, 77 L. Ed. 2d 1387, 103 S. Ct. 3536 (1983). The party requesting class certification under Rule 23 bears the burden of showing the existence of a class, that all the prerequisites of Rule 23(a) are satisfied, and that the class falls within one of the categories of Rule 23(b). See 7A Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 1759, at 102 (1986) (citing cases).
First, the plaintiffs have alleged the identification of a class that is sufficiently definite such that it would be administratively feasible to determine whether a particular person is a member of the class. The plaintiffs share a defining characteristic: their Hispanic origin, an immutable characteristic by which the defendants classify certain prisoners. Because the defendants have "produced a computer print-out entitled 'Hispanic Residents by Institution'," Plaintiffs' Reply, at 2, the defendants' statement that it is not administratively feasible to classify Hispanic inmates rings hollow.
Second, the plaintiffs have satisfied the prerequisites of Rule 23(a), which requires that the class be sufficiently numerous such that joinder is impracticable; that questions of law or fact be common to the class; that the claims of the representatives be typical of those of the class; and that the representative parties fairly and adequately represent the members of the class. Judging by their silence, the defendants have apparently conceded, and the record reflects, that these prerequisites have been met.
Whether a class is sufficiently numerous depends upon the circumstances of each case, see Garcia v. Gloor, 618 F.2d 264, 267 (5th Cir. 1980), cert. denied, 449 U.S. 1113, 101 S. Ct. 923, 66 L. Ed. 2d 842 (1981), but the plaintiffs need only show that the number is sufficiently large such that it would be extremely difficult or inconvenient to join all the members of the class. See Robidoux v. Celani, 987 F.2d 931, 935 (2nd Cir. 1993). Based upon the information produced by the defendants during discovery, the plaintiffs have shown that the class would consist of approximately 200 persons. See Plaintiffs' Memorandum of Points and Authorities in Support of Plaintiffs' Motion for Class Certification ("Plaintiffs' Memorandum"), at 3. The plaintiffs are not required to show the exact number, Evans v. U.S. Pipe & Foundry Co., 696 F.2d 925, 930 (11th Cir. 1983), particularly where, as in the prison context here, the members of the class "are incapable of specific enumeration." Dean v. Coughlin, 107 F.R.D. 331, 332 (S.D.N.Y. 1985). Given the nature of the claims asserted and the underlying facts alleged, a proposed class size of 200 prisoners is sufficiently numerous to satisfy the numerosity requirement.
Rule 23(a)(2) requires the existence of questions of fact or law common to the class. However, this rule does not require commonality on each fact or every issue. See Forbush v. J.C. Penney & Co., Inc., 994 F.2d 1101, 1106 (5th Cir. 1993); Cox v. American Cast Iron Pipe Co., 784 F.2d 1546, 1557 (11th Cir.), cert. denied, 479 U.S. 883, 107 S. Ct. 274, 93 L. Ed. 2d 250 (1986). This case involves allegations that Hispanic prisoners are discriminated against because of their race. By its very nature, racial discrimination is based upon characteristics that define a class; this, combined with the underlying facts from which the discrimination allegations arise, places a commonality determination easily within the Court's reach. See Holsey v. Armour Co., 743 F.2d 199, 217 (4th Cir. 1984), cert. denied, 470 U.S. 1028, 105 S. Ct. 1395, 84 L. Ed. 2d 784 (1985); see also NAACP v. Georgia, 99 F.R.D. 16, 25 (S.D.Ga. 1983) (when broad discrimination policies and practices constitute the gravamen of a class suit, common questions of law and fact are necessarily presented). Common questions of law and fact also arise, to a varying degree based upon the inmates' English fluency, from the lack of Spanish-language translators.
While the claims of each prisoner plaintiff need not be identical to satisfy the commonality requirement, the allegations in this case are sufficiently similar to satisfy the typicality requirement of Rule 23(a)(3). The representatives have been subjected to the same conditions and course of conduct as the members of the class they represent. Although the injuries suffered or threatened by each class member may not be identical with each other or the class representatives, typicality does not require such identity. See, e.g., Holsey, 743 F.2d at 217; Wright v. Stone Container Corp., 524 F.2d 1058, 1062 (8th Cir. 1975); Littlewolf v. Hodel, 681 F. Supp. 929, 935 (D.D.C. 1988), aff'd, 278 U.S. App. D.C. 270, 877 F.2d 1058 (D.C. Cir. 1989), cert. denied, 493 U.S. 1043, 110 S. Ct. 837, 107 L. Ed. 2d 832 (1990). Fortifying a conclusion that the typicality prong is satisfied, based upon the allegations in the complaint, the Court concludes that both the class representatives and absent class members would proceed on the same or similar legal theories and rely upon the same or similar facts.
In satisfying the final element of Rule 23(a), the Court finds that the plaintiffs have demonstrated that the representatives, thirteen Hispanic prisoners in four of the thirteen D.C. correctional institutions, will fairly and adequate represent the other prisoners. While the representatives share common or similar claims, which arise from common or similar facts, none of the representatives is identically situated. Each of the representatives has a varying degree of fluency with the English language and a different medical history and may have other problems that differ. As such, they fairly represent a cross-section of the Hispanic inmate population in the corrections institutions. Moreover, the plaintiffs are represented by experienced counsel who the Court expects will adequately protect the interests of the class.
Finally, the plaintiffs have satisfied Rule 23(b)'s requirement to maintain a class action. While the plaintiffs need only satisfy one of the requirements under Rule 23(b), the Court could base its decision on one of several grounds: first, separate actions in this suit against correctional institutions would create a risk of inconsistent adjudications, thus establishing incompatible standards of conduct for personnel at the correctional institutions. If the plaintiffs carry their burden at trial, the relief sought involves equitable relief as to the treatment of Hispanic prisoners in general and, possibly, Hispanic prisoners with limited speaking skills. A haunting specter of inconsistency, resulting in incompatible standards of conduct for prison officials, is raised by the threat of individual suits rather than a class action. This is sufficient to satisfy Rule 23(b)(1)(A). Similarly, final injunctive relief would be dispositive of the claims of each class member, satisfying Rule 23(b)(2), and common questions of both law and fact predominate in this case, making a class action superior to other available means to adjudicate this case, satisfying Rule 23(b)(3).
The Court's only reservation is not whether the class should be certified, but whether a subclass (or subclasses) consisting of Hispanic prisoners with no or limited English fluency should be established. The precise injury suffered and the exact nature of the equitable relief appropriate may vary with the individual Hispanic inmates' degree of English fluency. Although the Court could establish such a subclass sua sponte, see 7B Wright, Miller & Kane, supra, § 1790, at 269-70, it is preferable to have the full benefit of the views of the parties.
Accordingly, it is hereby
ORDERED that the plaintiffs' motion for partial summary judgment is denied; it is
FURTHER ORDERED that the defendants' motion for partial summary judgment is granted on the plaintiffs' causes of action in the Original Complaint as incorporated in the Amended Complaint, PP 32-44; it is
FURTHER ORDERED that the plaintiffs' motion for class certification is granted. A class is certified of all inmates of Hispanic origin who are now or who will later be incarcerated in D.C. Department of Corrections institutions; it is
FURTHER ORDERED that the plaintiffs' motion for certification of a subclass of Hispanic prisoners against whom detainers are imposed is denied as moot; it is
FURTHER ORDERED that the plaintiffs shall file on or before January 19, 1996, a brief on whether the Court should certify a subclass or subclasses of Hispanic inmates with limited or no fluency in the English language; opposition, if any, shall be filed on or before February 2, 1996; reply, if any, shall be filed on or before February 9, 1996; and it is
FURTHER ORDERED that the plaintiffs shall file on or before January 19, 1996, a proposed notice to the members of the class or subclass; opposition, if any, shall be filed on or before February 2, 1996; reply, if any, shall be filed on or before February 9, 1996.
IT IS SO ORDERED.
December 13, 1995.
JOYCE HENS GREEN
United States District Judge