Date: 03-09-2017

Case Style:

Case Number: 16-1711

Judge: Hamilton

Court: United States Court of Appeals for the Seventh Circuit on appeal from the Central District of Illinois

Plaintiff's Attorney: Joel Flaxman and Ken Flaxman

Defendant's Attorney: Patricia Castro fir Rock Island County

Jeffrey Dean Martens for Christopher Ray Young, et al.

Description: This appeal presents two distinct
claims. The first arises from plaintiff Joan Mulvania’s arrest
and detention at the Rock Island County Jail in November
2010. Mulvania claims the jail has a widespread practice of
conducting strip searches with excessive force and without
accommodating people who are experiencing mental distress.
The second claim arises from ten other plaintiffs who joined
2 No. 16‐1711
the suit to challenge the Rock Island Sheriff’s policy that requires
female detainees to wear either white underwear or no
underwear at all. They argue the policy is not rationally related
to a legitimate governmental objective and that it impairs
their dignity without sufficient justification. They also
seek certification to pursue that claim as a class.
We affirm the district court’s grant of summary judgment
against Mulvania on both of her claims. We reverse the district
court’s grant of summary judgment against the other plaintiffs
on the underwear policy, but we affirm denial of class certification
on that claim. We recount the facts as told in the parties’
undisputed statement of facts. Where a dispute exists, we
note the dispute and resolve it in favor of plaintiffs for purposes
of summary judgment, giving them the benefit of reasonable
inferences. E.g., Zerante v. DeLuca, 555 F.3d 582, 584
(7th Cir. 2009).
I. Mulvania’s Claims
A. Undisputed Facts of Mulvania’s Arrest and Detention
On November 7, 2010, two police officers arrested Joan
Mulvania for domestic battery. They brought her to the Rock
Island County Jail, but upon arrival, Mulvania refused to exit
the vehicle. Several corrections officers moved her from the
car to a holding cell in the jail. Mulvania’s speech was slurred,
and she screamed obscenities, refused to cooperate with the
officers, and was physically combative. The officers testified
that Mulvania appeared intoxicated and was acting erratically.
Mulvania claims she was experiencing a “post‐traumatic
stress disorder flashback.” She disputes that the officers
smelled alcohol on her breath. Defendants acknowledge that
No. 16‐1711 3
they did not smell alcohol, but they rely on hospital laboratory
results from that day in which Mulvania tested positive
for cocaine and cannabinoids.
Once in the holding cell, Mulvania refused to change from
her clothes into a jail uniform, which is part of the jail’s booking
process for all detainees. The defendants claim that misdemeanor
detainees are permitted to change in a private room
when they are cooperative; however, the plaintiffs dispute
this. When detainees are not cooperative, the Sheriff permits
officers to use reasonable force to ensure compliance with the
policy.
After Mulvania refused to change into the jail uniform,
two female corrections officers and three or four male officers
restrained her and removed her clothing. They placed Mulvania
on her stomach, held her arms straight over her head, and
then lifted her shirt off. During this process, Mulvania banged
her head against the floor and yelled, “They’re going to rape
me.” After they removed her clothing, the officers draped a
jail uniform over her naked body and left the holding cell.
Several minutes later, Mulvania had a seizure and was
brought to the hospital. After she returned from the hospital,
she was released from the jail without any charges.
B. Procedural History
In November 2010 Mulvania filed this suit under 42 U.S.C.
§ 1983 against Rock Island County and the Sheriff of Rock Island
County. She alleged that the officers unlawfully arrested
her, detained her without probable cause, conducted an unconstitutional
strip search, used unreasonable force by shackling
her, continued to detain her after she was informed that
4 No. 16‐1711
she would not be prosecuted, and sexually assaulted her because
of her sexual orientation. Mulvania amended her complaint
numerous times over the next several years, dropping
most of her original claims and adding new ones, including
the underwear claim.
On April 15, 2015, Mulvania sought to file a fourth
amended complaint in which she intended to “delete all of the
allegations pertaining to the individual defendants and to
clarify plaintiff’s official capacity claims against the Sheriff.”
She also sought to add a new claim under the Americans with
Disabilities Act. The district court denied her motion as it pertained
to the Americans with Disabilities Act. The court said
the new claim did not relate back to the third amended complaint
and that it was not in the interest of justice to amend
the complaint once again to add that new claim after so many
years of litigation. The court permitted plaintiffs to file a
fourth amended complaint “that includes only the allegations
related to the underwear claim.”
When the plaintiffs filed their fourth amended complaint,
however, they included not only the underwear claim but also
Mulvania’s earlier excessive force claim. The Sheriff moved to
strike those allegations because they exceeded the court’s order
granting leave to amend the complaint. On March 31,
2016, the district court granted the motion to strike, but also
proceeded to address the merits of the claim to avoid deciding
the case on a “procedural technicality.”
C. Summary Judgment on Excessive Force Claim
Mulvania claims the Rock Island County Jail has a widespread
custom or practice of using excessive force to require
No. 16‐1711 5
detainees to change into jail‐issued uniforms. She acknowledges
that the jail’s official policy authorizes a use‐of‐force
continuum to ensure compliance with the uniform policy. She
claims that in practice, however, excessive force is the norm.
The district court concluded that Mulvania put forward insufficient
evidence of such a custom or practice of using excessive
force. We agree.
We review de novo the district court’s decision granting the
Sheriff’s motion for summary judgment. Chaib v. Geo Group,
Inc., 819 F.3d 337, 340 (7th Cir. 2016). We construe all facts in
the light most favorable to Mulvania, who is the non‐moving
party. Id. Summary judgment is appropriate if there is no genuine
dispute of material fact and the Sheriff is entitled to judgment
as a matter of law. Fed. R. Civ. P. 56(a).
Mulvania relies on two statements by corrections officers
to support her claim of a widespread practice of using excessive
force to ensure compliance with the jail’s uniform policy.
Officer Bailey testified in his deposition, “When someone refuses
to remove their clothes, we have to take their clothes
away from them and give them a jumpsuit.” Officer Nesseler
testified that if a detainee refuses to remove her clothing, “We
just take ’em off.” Neither of these statements is evidence of
the use of excessive force, let alone a widespread practice of
it. The first statement is consistent with the Sheriff’s stated
use‐of‐force continuum policy. The second statement is
quoted misleadingly by plaintiffs. Officer Nesseler’s “We just
take ’em off” statement responded to the question: “how
would you go about taking a detainee’s clothes off?” Her response
is not evidence of any use of excessive force.
Mulvania argues, however, that the defendants did not
challenge the sufficiency of the evidence in their motion for
6 No. 16‐1711
summary judgment. She claims that the district court raised
this argument on its own and failed to give her notice and a
reasonable time to respond on the issue as required by Rule
56(f). This is not correct. The defendants did argue that there
was insufficient evidence of a widespread practice of excessive
force in their motion. They claimed that Mulvania “cannot
show that the policy of the Sheriff requires excessive force
given the circumstances” nor can she “show a widespread
practice or custom based on only her arrest and detention.”
That was sufficient to require her to come forward with evidence
of a widespread practice. It was not an error for the district
court to decide the motion on these grounds.
D. Americans with Disabilities Act Claim
Mulvania argues next that the district court abused its discretion
when it denied her motion for leave to amend her
complaint to include a claim under the Americans with Disabilities
Act (ADA), 42 U.S.C. § 12101 et seq. The ADA claim
sought to challenge the jail’s intake procedures, alleging that
the jail’s practice of enforcing the uniform policy before
providing mental health screening was unlawful. Mulvania
alleged that she had PTSD and was experiencing a flashback
during her intake, and that the jail policy failed to accommodate
her disability.
The district court denied Mulvania’s motion for two reasons.
First, the court said her motion did not relate back to the
original pleading under Rule 15(c)(1) and was thus timebarred.
The court noted that none of Mulvania’s earlier complaints
included any reference to PTSD or mental health
screening. Second, the court said that amending the complaint
to allow the ADA claim would not further the interests
No. 16‐1711 7
of justice. See Fed R. Civ. P. 15(a). The court noted that Mulvania
was attempting to recast her claims after years of litigation
and that the lengthy delay in bringing the ADA claim seemed
strategic.
We review for abuse of discretion the district court’s denial
of Mulvania’s motion to amend her complaint. Hall v. Norfolk
Southern Railway Co., 469 F.3d 590, 594 (7th Cir. 2006). As a
general rule, district courts should liberally grant leave to
amend pleadings. Fed. R. Civ. P. 15(a); Foman v. Davis, 371 U.S.
178, 182 (1962) (reversing denial of leave to amend by citing
Rule 15(a)(2)’s mandate to freely grant leave to amend and
stating “this mandate is to be heeded”); Barry Aviation Inc. v.
Land O’Lakes Municipal Airport Comm’n, 377 F.3d 682, 687 &
n.3 (7th Cir. 2004) (collecting cases). This liberal approach to
amendments is particularly important where the law is uncertain,
such as with pleading standards. Runnion v. Girl Scouts
of Greater Chicago & Northwest Indiana, 786 F.3d 510, 520 (7th
Cir. 2015) (“In the wake of Twombly and Iqbal, there remain
considerable uncertainty and variation among the lower
courts as to just how demanding pleading standards have become.
… In the face of that uncertainty, applying the liberal
standard for amending pleadings, especially in the early
stages of a lawsuit, is the best way to ensure that cases will be
decided justly and on their merits.”) (citations omitted).
Despite this generally liberal approach to pleading
amendments, the district court did not abuse its discretion in
this case. The court quite reasonably found that Mulvania’s
amendment would not have furthered the interests of justice.
Fed. R. Civ. P. 15(a). We have noted that “district courts have
broad discretion to deny leave to amend where there is undue
8 No. 16‐1711
delay, bad faith, dilatory motive, repeated failure to cure deficiencies,
undue prejudice to defendants, or where the
amendment would be futile.” Arreola v. Godinez, 546 F.3d 788,
796 (7th Cir. 2008); accord, e.g., Runnion, 786 F.3d at 520 (noting
undue delay is sound basis for denying leave to amend
pleadings).
Here, the district court found that the plaintiffs had unreasonably
delayed introducing the ADA claim, and the court
suggested that the delay was strategic. Mulvania could have
alleged the ADA claim at the beginning of the suit. The
lengthy delay could not be justified by newly discovered information.
Moreover, allowing the new claim after several
years of litigation would have burdened the defendants by requiring
them to engage in substantial additional discovery.
The court also found that the claim would be futile because it
would be barred by the two‐year statute of limitations for
ADA claims. The district court set forth sufficient reasons to
deny the proposed amendment. It did not abuse its discretion.
II. White Underwear Policy Claim
Mulvania filed her third amended complaint on April 24,
2012. It added ten plaintiffs who sued the Sheriff because of
his policy that requires female detainees to wear white underwear
or no underwear at all. The policy allows a detainee to
purchase underwear from the jail’s commissary if she has sufficient
funds. It is unclear how much the underwear costs or
when the underwear would be delivered to the detainee. In
addition, a detainee may contact family or friends outside of
the jail and ask them to bring her white underwear.
Mulvania added these ten plaintiffs in response to the defendants’
argument that she was not representative of the
No. 16‐1711 9
class because she was not wearing underwear when she arrived
at the jail. The other plaintiffs are women who were required
to remove their underwear due to the policy. Some
plaintiffs allege that corrections officers watched as they removed
their underwear and changed into jail uniforms. They
describe the experience as “very uncomfortable,” “embarrassing,”
“humiliating,” and “upsetting.” They argue that the policy
is not rationally related to a legitimate governmental objective
and that it imposes an unjustified dignitary harm in
violation of their rights under the Fourth, Eighth, and Fourteenth
Amendments.
The Sheriff’s sole stated rationale for the underwear policy
was to prevent detainees from extracting ink from colored underwear.
The theory was that detainees could use that ink to
make tattoos. The Sheriff did not identify any instances of this
occurring, but testified that he was “told … when [he] wrote
the policy” that such a security concern exists. The district
court denied certification to the proposed class on August 15,
2012, in part because plaintiffs failed to satisfy the numerosity
and predominance requirements of Rule 23(a) and (b)(3).
A. Summary Judgment on Merits
Plaintiffs appeal the district court’s grant of summary
judgment against their challenge to the white underwear policy.
The court found that while the Sheriff’s security interest
in the underwear policy was “weak,” the dignity intrusion to
plaintiffs was “minimal.” The court made this finding based
in part on its conclusion that the policy was close to the “correctional
mainstream” and because detainees would be forced
to go without underwear for at most one day. The court noted
that plaintiffs’ declarations discussed only the “actual process
10 No. 16‐1711
of removing their underwear” and did not show that they suffered
dignitary harm when forced to go without underwear
throughout the rest of their detention. Noting that “Federal
courts defer to the judgment of jail administrators,” the court
ruled that the Sheriff was entitled to summary judgement.
On appeal plaintiffs claim, among other things, that the
district court erred by viewing the facts in the light most favorable
to the defendants. We review de novo the district
court’s grant of summary judgment for the Sheriff. Chaib, 819
F.3d at 340.
Because plaintiffs were pretrial detainees, not convicted
prisoners, we assess their claim under the Fourteenth Amendment
instead of the Eighth Amendment. In Bell v. Wolfish, the
Supreme Court held that the Fourteenth Amendment’s Due
Process Clause prohibits holding pretrial detainees in conditions
that “amount to punishment.” 441 U.S. 520, 535 (1979).
A pretrial condition can amount to punishment in two ways:
first, if it is “imposed for the purpose of punishment,” or second,
if the condition “is not reasonably related to a legitimate
goal—if it is arbitrary or purposeless—a court permissibly
may infer that the purpose of the government action is punishment.”
Id. at 538–39. The Supreme Court recently explained
that “a pretrial detainee can prevail by providing only
objective evidence that the challenged governmental action is
not rationally related to a legitimate governmental objective
or that it is excessive in relation to that purpose.” Kingsley v.
Hendrickson, 576 U.S. —,—, 135 S. Ct. 2466, 2473–74 (2015).
Defendants offer meagre justification for the white underwear
policy. The only evidence in the record that supports the
policy is the Sheriff’s deposition testimony that he was “told
… when [he] wrote the policy” that such a security concern
No. 16‐1711 11
about tattoo ink exists. There is no evidence that detainees at
the Rock Island County Jail have ever extracted ink from colored
underwear to make tattoos. Nor, for that matter, have
defendants identified an instance of this occurring anywhere
else. The district court asserted that the policy might be close
to the “correctional mainstream,” but we find no support for
that conclusion in the record.
In its summary judgment order, the district court noted:
“While the underwear policy may strike the reader as odd,
and the Sheriff’s explanation as implausible, the Court notes
that many other jails have the same or similar policies.” Mulvania
v. City of Rock Island, No. 4:10‐cv‐04080‐SLD‐JEH, slip op.
at 15 n.11 (C.D. Ill. Mar. 31, 2016). The court then cited four
cases to demonstrate this point, noting that “the Jail’s interest
is perhaps close to the correctional mainstream and therefore
makes the Court’s view of the Sheriff’s rationale stronger.” Id.,
citing Gaston v. McCoy, No. 15‐cv‐1054, 2015 WL 3484237 (C.D.
Ill. June 1, 2015); Gallup v. Schmaeling, No. 12‐cv‐1264, 2013 WL
4855181 (E.D. Wis. Sept. 10, 2013); Batchelor v. Fenwick, 710 F.
Supp. 2d 811, 816 (S.D. Ind. 2010); Marriott v. County of Montgomery,
426 F. Supp. 2d 1, 9 (N.D.N.Y. 2006).
We agree that the white underwear policy seems odd and
that the Sheriff’s explanation seems at least questionable. We
disagree that the four cases cited by the district court show
that “many other jails” have the same policy or that the policy
may be within the “correctional mainstream.” Most of these
cases are distinguishable from the Rock Island County Jail’s
white underwear policy. Even if they were not, four cases are
insufficient to establish the norms of correctional institutions.
We address the four cases in turn.
12 No. 16‐1711
Gaston involved a pro se complaint that merely alleged
that a jail would not provide the plaintiff with underwear.
2015 WL 3484237, at *1. It did not claim that detainees were
forced to remove their nonwhite underwear as a jail policy.
Failing to give a new detainee underwear is considerably different
than taking away her underwear. The second case, Gallup,
was another pro se complaint. It did allege that the jail
had a white underwear policy, 2013 WL 4855181, at *2. In any
event, though, these unsupported allegations in unrelated
complaints do not prove any fact sufficient for the court to
make a finding at summary judgment.
In Batchelor, an opinion from 2010, the district court noted
that a jail used to have a white underwear policy “whereby inmates
wearing colored underwear were asked to exchange it
for white underwear.” Batchelor, 710 F. Supp. 2d at 816. In addition
to the fact that the policy had been revoked, the Batchelor
policy is readily distinguishable from the Rock Island policy.
The policy may have been voluntary (detainees were
“asked” to exchange their underwear), and detainees appear
to have been given underwear to replace their nonwhite underwear
(“in exchange for”). Finally, in Marriott, it is unclear
that a white underwear policy existed. There the court said
that the defendants’ assertion about a white underwear policy
“contravenes all of the prior testimony given by defendants
and their officials—no CO, Jail administrator, or other official
ever testified about arrestees and their white underwear.” 426
F. Supp. 2d at 9.
Even if we assume the Rock Island County Jail is not the
only jail ever to have had a white underwear policy, this record
does not show the policy is within any correctional mainstream.
Even if all four of these cases involved similar white
No. 16‐1711 13
underwear policies, that would still seem to imply that the
Rock Island County Jail’s policy is an outlier. See Holt v. Hobbs,
574 U.S. —,—, 135 S. Ct. 853, 866 (2015) (“While not necessarily
controlling, the policies followed at other well‐run institutions
would be relevant to a determination of the need for
a particular type of restriction.”), citing Procunier v. Martinez,
416 U.S. 396, 414 n.14 (1974). We make no judgment now
about whether the policy is within a correctional mainstream,
but this record does not show that it is.
Any security justification for the underwear policy is further
undermined by defendants’ own claim that they often
did not enforce the policy. Defendants state that the prohibition
“was not consistently applied” and that “detainees often
were permitted to wear colored underwear.” This admission
supports an inference that the asserted security concern about
tattoo ink from underwear is not genuine. See King v. McCarty,
781 F.3d 889, 898 (7th Cir. 2015) (prisoner challenged jail’s use
of a transparent jumpsuit to transport prisoner: “Detainees arriving
at the intake facility from other jails were not wearing
similar garments, which at least tends to suggest that such
clothing is not necessary for safe and secure penal transfers”).
The irregular enforcement of the underwear policy also creates
the potential for abuse, for instance by providing a way
to harass bothersome detainees.
Giving plaintiffs the benefit of favorable inferences from
this record, a reasonable trier of fact could find that the white
underwear policy is not rationally related to a legitimate governmental
objective, or is at least excessive in relation to such
a purpose. This conclusion, without more, supports an inference
that the policy punishes pretrial detainees in violation of
the Fourteenth Amendment. Kingsley, 576 U.S. at —, 135 S. Ct.
14 No. 16‐1711
at 2473–74; Bell, 441 U.S. at 539. We therefore reverse the district
court’s grant of summary judgment against the plaintiffs
on their challenge to the white underwear policy.
Even if the jail’s policy might ultimately be found to be rationally
related to a legitimate governmental objective, the
deprivation it imposes must not be excessive in relation to that
purpose. Kingsley, 576 U.S. at —, 135 S. Ct. at 2473–74. This
assessment calls for considering not just the government’s interest
but also the dignity interests of the plaintiffs. See Brown
v. Plata, 563 U.S. 493, 510 (2011) (although prisoners are deprived
of many rights while in custody, “the law and the Constitution
demand recognition of certain other rights. Prisoners
retain the essence of human dignity inherent in all persons.”).
Dignity serves an important balancing function alongside
the legitimate safety and management concerns of jails and
prisons. See King, 781 F.3d at 897 (“Claims such as [plaintiff’s]
require that we consider the larger tension between the privacy
and dignity of prisoners and the pressing institutional
needs for security and safety. Courts give wardens substantial
deference in pursuing the latter ends, but that deference is not
complete.”); see also Canedy v. Boardman, 16 F.3d 183, 186 (7th
Cir. 1994) (“The judicial inquiry, then is to ‘balanc[e] the significant
and legitimate security interests of the institution
against the privacy interests of the inmates.’”), quoting Bell,
441 U.S. at 560. Without the counterweight of dignity, a jail
could presumably set forth security reasons to require detainees
to remain naked throughout their detention or other such
unseemly measures. The Constitution forbids such tactics. It
requires consideration of individual dignity interests when
assessing the permissibility of restrictive custodial policies.
No. 16‐1711 15
Here, the plaintiff‐detainees allege a credible dignitary
harm. They describe their experiences being deprived of their
underwear as “very uncomfortable,” “embarrassing,” “humiliating,”
and “upsetting.” In addition, the policy resulted
in detainees attending their own court hearings without underwear.
At least one plaintiff was deprived of her underwear
during her menstrual cycle.
This indignity lasted for indeterminate periods of time.
The district court found that detainees would be deprived of
underwear for at most one day, but we have not found support
for that finding. Defendants appear to concede this point
in their brief. Thus, even if the white underwear policy turns
out to be rationally related to a legitimate interest, the dignitary
harm imposed by the policy might still be excessive in
relation to that interest.
B. Denial of Class Certification
Plaintiffs also appeal the district court’s denial of class certification
for the underwear claim. They argue the district
court erred when it concluded that they failed to meet the predominance
and numerosity requirements of Rule 23. We
agree that the district court incorrectly applied the predominance
requirement, but we find no error in its numerosity ruling.
We affirm the denial of class certification.
Federal Rule of Civil Procedure 23 governs class certification.
A court may certify a plaintiff class when the named
plaintiff demonstrates that the proposed class meets the four
requirements of Rule 23(a)—numerosity, commonality, typicality,
and adequacy of representation—and at least one of the
branches of Rule 23(b). Oshana v. Coca‐Cola Co., 472 F.3d 506,
16 No. 16‐1711
513 (7th Cir. 2006). Plaintiffs have the burden of demonstrating
that the requirements of Rule 23 are met. Wal‐Mart Stores,
Inc. v. Dukes, 564 U.S. 338, 350 (2011).
District courts have “broad discretion to determine
whether certification of a class‐action lawsuit is appropriate.”
Chavez v. Illinois State Police, 251 F.3d 612, 629 (7th Cir. 2001),
quoting Mira v. Nuclear Measurements Corp., 107 F.3d 466, 474
(7th Cir. 1997). We review for abuse of discretion the district
court’s denial of class certification. Chicago Teachers Union, Local
No. 1 v. Board of Education of City of Chicago, 797 F.3d 426,
433 (7th Cir. 2015).
Plaintiffs sought class certification pursuant to Rule
23(b)(3), which requires that “questions of law or fact common
to class members predominate over any questions affecting
only individual members.” The district court concluded
that common issues did not predominate in the underwear
claim because the damages would vary for individual class
members based on factors such as how long a detainee was
deprived of her underwear, whether she was on her menstrual
cycle or pregnant, and other considerations. In short,
the court concluded that “there would be no simple or formulaic
method to calculate these damages across all of the individuals
of the proposed class.” Mulvania v. Sheriff of Rock Island
County, No. 4:10‐cv‐4080‐SLD‐JAG, 2012 WL 3486133, at
*9 (C.D. Ill. Aug. 15, 2012).
This reasoning was a mistake. “It has long been recognized
that the need for individual damages determinations at
[a] later stage of the litigation does not itself justify the denial
of certification.” Mullins v. Direct Digital, LLC, 795 F.3d 654,
671 (7th Cir. 2015); see also, e.g., Schleicher v. Wendt, 618 F.3d
No. 16‐1711 17
679, 685 (7th Cir. 2010) (“The possibility that individual hearings
will be required for some plaintiffs to establish damages
does not preclude certification.”); William B. Rubenstein,
Newberg on Class Actions, § 4:54 (5th ed. Dec. 2016 Update)
(“[C]ourts in every circuit have uniformly held that the
23(b)(3) predominance requirement is satisfied despite the
need to make individualized damage determinations and a
recent dissenting decision of four Supreme Court Justices
characterized the point as ‘well nigh universal.’”), citing Comcast
Corp. v. Behrend, 569 U.S. —,—, 133 S. Ct. 1426, 1437
(2013) (Ginsburg and Breyer, JJ., joined by Sotomayor and Kagan,
JJ., dissenting).
In cases like this, where damages must be assessed individually,
district courts may “bifurcate the case into a liability
phase and a damages phase.” Mullins, 795 F.3d at 671. The
district court thus erred when it ruled that class certification
was precluded based on the need for damages to be assessed
individually. This error was harmless, however, because the
court did not abuse its discretion when it ruled that plaintiffs
failed to meet the numerosity requirement.
To satisfy Rule 23’s numerosity requirement, the proposed
class must be “so numerous that joinder of all members is impracticable.”
Fed. R. Civ. P. 23(a)(1). While there is no magic
number that applies to every case, a forty‐member class is often
regarded as sufficient to meet the numerosity requirement.
See Swanson v. American Consumer Industries, Inc., 415
F.2d 1326, 1333 & n.9 (7th Cir. 1969) (even forty class members
“is a sufficiently large group to satisfy Rule 23(a)”); see also
Rubenstein, Newberg on Class Actions, § 3:12 (“[A] class of 40
or more members raises a presumption of impracticability of
joinder based on numbers alone.”).
18 No. 16‐1711
The plaintiffs estimated that their class would have fortyone
members. The district court identified several problems
with plaintiffs’ calculation and overall numerosity argument,
yet plaintiffs fail to address most of these problems on appeal.
First, as the district court noted, plaintiffs did not address the
impracticability of joinder in their amended motion in support
of class certification. Nor do they on appeal. See Pruitt v.
City of Chicago, 472 F.3d 925, 926–27 (7th Cir. 2006) (affirming
denial of class certification; no showing that joinder of forty
possible class members was impracticable). Second, plaintiffs
did not explain critical ambiguities in how they calculated the
potential class size. Nor do they on appeal. Third, the district
court disagreed with plaintiffs’ class start date of November
15, 2008, which is two years before Mulvania’s first complaint.
Plaintiffs address only this third issue on appeal. The district
court’s first two reasons alone would be sufficient for us to
affirm its ruling. The court’s approach to the third issue—the
class start date—likewise was not an abuse of discretion.
The district court calculated a class of 29 members based
on a class start date of April 24, 2010, two years before Mulvania
filed the third amended complaint, which first introduced
the underwear class allegations. Plaintiffs argue that this class
start date is incorrect because, under Rule 15(c), the third
amended complaint “related back” to the initial complaint
Mulvania filed on November 15, 2010. Plaintiffs cited no authority
to support this calculation method in their briefs, but
at oral argument they cited Arreola v. Godinez. 546 F.3d 788,
796 (7th Cir. 2008).
Arreola does not stand for the proposition that plaintiffs
claim. Although Arreola did address relation back under Rule
No. 16‐1711 19
15(c) and numerosity under Rule 23(a), it addressed them separately.
Id. at 796 (district court did not abuse discretion by
granting leave to amend complaint to add class allegations to
claim that related back to initial complaint); id. at 798 (plaintiff
provided sufficient information in the record to establish numerosity).
One of the examples in Arreola might seem to assume that
Rule 15(c) may push back the class start date to an earlier complaint
(before any class allegations were made) for the purpose
of satisfying Rule 23(a)’s numerosity requirement. See id.
However, Arreola made no holding to that effect. The court
merely hypothesized, for illustrative purposes, the ways in
which the plaintiff in that case could easily meet the numerosity
requirement. The court’s example showed how the record
could have supported a finding that the putative class
would exceed 350 members. It would have made no difference
in the court’s example if it had used either complaint to
calculate the class start date.
Plaintiffs cite no authority that directly supports their argument,
and we need not make their arguments for them. See
Vaughn v. King, 167 F.3d 347, 354 (7th Cir. 1999) (“It is not the
responsibility of this court to make arguments for the parties.”).
The district court did not err by basing its start date for
the numerosity calculation on the third amended complaint,
which is when the white underwear class allegations were
first introduced.

Outcome: We AFFIRM the district court’s grant of summary judgment
for defendants on Mulvania’s excessive force claim, its
partial denial of Mulvania’s motion to amend her complaint,
and its denial of class certification in the underwear matter.
We REVERSE the district court’s grant of summary judgment
to defendants in the underwear matter, and we REMAND for
further proceedings consistent with this opinion.

Plaintiff's Experts:

Defendant's Experts:

Comments: