                                                                         FILED
                            FOR PUBLICATION                               APR 21 2015
                    UNITED STATES COURT OF APPEALS                    MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS

                           FOR THE NINTH CIRCUIT


VICTOR ANTONIO PARSONS;                         No. 13-16396
SHAWN JENSEN; STEVE SWARTZ;
DUSTIN BRISLAN; SONIA                           D.C. No. 2:12-cv-00601-NVW
RODRIGUEZ; CHRISTINA                            District of Arizona,
VERDUZCO; JACKIE THOMAS;                        Phoenix
JEREMY SMITH; ROBERT CARRASCO
GAMEZ, Jr.; MARYANNE CHISHOLM;
DESIREE LICCI; JOSEPH HEFNER;                   ORDER
JOSHUA POLSON; CHARLOTTE
WELLS; ARIZONA CENTER FOR
DISABILITY LAW,


             Plaintiffs - Appellees,

 v.

CHARLES L. RYAN and RICHARD
PRATT,

             Defendants - Appellants.


Before: REINHARDT, NOONAN, and WATFORD, Circuit Judges.

      The panel voted to deny the petition for rehearing en banc; the petition was

subsequently withdrawn. The full court was so notified.
      A judge then requested a vote on whether to rehear the matter en banc. The

matter failed to receive a majority of the votes of the nonrecused active judges in

favor of en banc reconsideration. FED. R. APP. P. 35.

      Judge Ikuta’s dissent from denial of rehearing en banc is filed concurrently

with this Order.

      The mandate shall issue forthwith.
                                                                             FILED
                                                                             APR 21 2015

                                                                          MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS



Parsons v. Ryan, No. 13-16396

IKUTA, Circuit Judge, with whom KOZINSKI, O’SCANNLAIN, CALLAHAN,
BEA, and M. SMITH, Circuit Judges, join, dissenting from the denial of rehearing
en banc:

      The Supreme Court has established two straightforward principles that are

applicable to this appeal. First, before certifying a class, a court must ensure that

all members of the potential class have the same sort of claim, and that the claim is

susceptible to classwide resolution. See Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct.

2541, 2551 (2011). Second, a prisoner does not have an Eighth Amendment claim

merely because the prisoner is incarcerated in a prison with a defective medical

system. See Lewis v. Casey, 518 U.S. 343, 349–51 (1996); cf. Estelle v. Gamble,

429 U.S. 97, 104 (1976). Today, the court turns its back on both of these

principles by leaving in place the opinion of a three-judge panel that affirms the

certification of a class consisting of every one of the 33,000 prisoners incarcerated

in the Arizona prison system on the theory that each of those prisoners has a

common claim for an Eighth Amendment violation. I dissent from our failure to




                                           1
take this opinion en banc in order to vacate it.1

      The preliminary record in this case reveals serious systemwide problems

with healthcare in the Arizona prison system. But the record does not establish

that every one of the 33,000 prisoners in the Arizona prisons has a serious medical

need, see Estelle, 429 U.S. at 104–06, and faces a similar substantial risk of serious

harm due to defendants’ alleged deliberate indifference to this need, see Farmer v.

Brennan, 511 U.S. 825, 847 (1994). Rather, the evidence in the record shows a

diverse group of prisoners with different health conditions and needs who require

different levels of medical care. While all prisoners in some sense are exposed to

the same systemic inadequacies of the Arizona prisons’ medical facilities, that

exposure alone does not give rise to an Eighth Amendment claim. See Estelle, 429

      1
        After the panel issued its opinion in this case, but before the mandate
issued, the Arizona Department of Corrections (ADC) and the certified class of
prisoners settled the substantive dispute underlying the interlocutory appeal of the
class certification order. Specifically, the ADC agreed to implement a detailed
remedial program to correct deficiencies in the medical, dental, and mental health
care available in its prison facilities. After the district court approved this
settlement, the ADC moved for the panel to vacate its opinion. The panel denied
this motion. Order Denying Motion for Vacatur, Parsons v. Ryan, No. 13-16396
(9th Cir. Feb. 26, 2015), ECF No. 72. Although we can no longer use en banc
review to correct the errors in the opinion because the case became moot before the
mandate had issued, we can vacate the decision to avoid having the panel’s serious
misinterpretations of Supreme Court Eighth Amendment and class action
jurisprudence become the law of our circuit. See United States v. Payton, 593 F.3d
881, 886 (9th Cir. 2010).


                                           2
U.S. at 103; see also Lewis, 518 U.S. at 349–51.

      Despite the lack of any support in the record, the panel nevertheless affirms

the certification of this diverse class of prisoners—even though not all members of

the class have an Eighth Amendment claim, let alone a common claim—in

defiance of Dukes, Lewis, and the Supreme Court’s Eighth Amendment

jurisprudence. See Dukes, 131 S. Ct. at 2551; Lewis, 518 U.S. at 349–51; Wilson v.

Seiter, 501 U.S. 294, 297–300 (1991); Estelle, 429 U.S. at 104–06; Farmer, 511

U.S. at 832–34. The panel also creates a circuit split with the Third Circuit. See

Rouse v. Plantier, 182 F.3d 192 (3d Cir. 1999) (Alito, J.). By refusing to vacate

this opinion and thereby designating it as the law of our circuit, the court endorses

a view of the Eighth Amendment and class actions that is at odds with the binding

authority of the Supreme Court.

                                           I

      Thirteen inmates in custody throughout the Arizona prison system brought a

class action suit (under Rule 23 of the Federal Rules of Civil Procedure) against

senior officials in the Arizona Department of Corrections (ADC) in March 2012.

Parsons v. Ryan (Parsons II), 754 F.3d 657, 662–63 (9th Cir. 2014). They alleged

that through its various systemwide practices and policies regarding prisoners’

medical, dental, and mental health care, the ADC is “deliberately indifferent” to the

                                          3
resulting “significant injury and substantial risk of serious harm” to all prisoners in

violation of the Eighth Amendment. Dist. Ct. Dkt. 1 (Complaint) ¶ 26. The

prisoners identified ten such practices, “including inadequate staffing, outright

denials of care, lack of emergency treatment, failure to stock and provide critical

medication, grossly substandard dental care, and failure to provide therapy and

psychiatric medication to mentally ill inmates,” Parsons II, 754 F.3d at 663, and

provided several examples that illustrated how the practices inflicted harm on

individual prisoners, see id. at 664–67 & nn.5–9. As one would expect in a class

so large, the different injuries alleged varied widely depending on the specific

medical needs of each prisoner. For instance, prisoners with chronic health

problems alleged they were given incorrect or expired medications; prisoners with

acute medical needs alleged they did not receive timely emergency services;

prisoners with dental needs alleged they were denied necessary permanent fillings

or other dental treatment; and prisoners with mental health needs alleged they did

not receive the monitoring and treatment they required due to inadequate staffing.

Id.

      Plaintiffs moved to certify a class consisting of all approximately 33,000

prisoners in the ten ADC prisons. Id. at 662–63; Dist. Ct. Dkt. 1 ¶¶ 101–02. They

supplemented their allegations in the complaint with a number of documents

                                           4
obtained from the ADC in discovery. These documents included internal reviews

and exchanges between ADC officials and independent contractors that revealed

serious dysfunction in the ADC healthcare system. See Parsons II, 754 F.3d at

668–69. In addition, plaintiffs submitted four expert reports that criticized the

ADC’s healthcare system. Id. at 669–72. The experts offered their opinion that

the practices and policies placed four specific groups of prisoners at substantial

risk of serious harm: (1) prisoners who require medical care, (2) prisoners who

need dental care, (3) prisoners who require mental health care, and (4) prisoners in

solitary confinement. Id.

      The district court concluded that Rule 23(a)’s threshold requirements of

numerosity, commonality, typicality, and adequacy of representation2 were each

met and certified a class of all 33,000 prisoners.3 Parsons v. Ryan (Parsons I), 289


      2
          Rule 23(a) of the Federal Rules of Civil Procedure provides:

      One or more members of a class may sue or be sued as representative
      parties on behalf of all members only if: (1) the class is so numerous
      that joinder of all members is impracticable; (2) there are questions of
      law or fact common to the class; (3) the claims or defenses of the
      representative parties are typical of the claims or defenses of the class;
      and (4) the representative parties will fairly and adequately protect the
      interests of the class.

      3
          The district court also certified a subclass of approximately 3,000 prisoners
                                                                           (continued...)

                                             5
F.R.D. 513, 516, 520–25 (D. Ariz. 2013). The panel agrees, reasoning that

plaintiffs “identified questions of law or fact common to the class,” because

plaintiffs had alleged a cognizable Eighth Amendment theory that “ADC policies

and practices of statewide and systemic application expose all inmates in ADC

custody to a substantial risk of serious harm.” Parsons II, 754 F.3d at 675–76.

The panel describes how the identified ADC policies and practices are “the ‘glue’

that holds together the putative class and the putative subclass; either each of the

policies and practices is unlawful as to every inmate or it is not.” Id. at 678.

Because the plaintiffs identified ADC healthcare policies that applied throughout

the prison system, the panel distinguishes Dukes on the ground that the plaintiffs

there had failed to establish a systemwide policy that affected each member of the

class. Id. at 681 (claiming that unlike Dukes, this case “looks to whether current

conditions in ADC facilities create a risk of future harm, not to the varied reasons

for millions of decisions made in the past”).

      In short, the panel: (1) identifies systemic problems with aspects of the

ADC healthcare system, (2) claims that such problems violated all prisoners’

      3
        (...continued)
in isolation units. Parsons I, 289 F.R.D. at 516, 525. Because plaintiffs alleged
and produced evidence of a number of practices and policies specific to the
isolation units, Parsons II, 754 F.3d at 671–72, the certification of that subclass
does not raise the concerns I discuss here.

                                           6
Eighth Amendment rights because all prisoners are exposed to the same system,

and (3) accordingly holds that this common hazard could be resolved by a common

answer, namely, by deciding whether the ADC’s healthcare system violates the

Constitution. In reaching this conclusion, the panel misunderstands both Rule 23

and the Eighth Amendment.

                                           II

      Because a class action “merely enables a federal court to adjudicate claims

of multiple parties at once, instead of in separate suits,” Shady Grove Orthopedic

Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 408 (2010), it is necessary to

understand the Supreme Court’s explanation of both the law of class certification

and the framework for the underlying Eighth Amendment claim.

                                          A

      Rule 23 of the Federal Rules of Civil Procedure is a procedural rule that

permits courts to aggregate the legal claims of multiple parties into a class action

when it is efficient and fair to do so. See Dukes, 131 S. Ct. at 2551 n.5; Shady

Grove, 559 U.S. at 408. Because it is no more than a claim aggregation device,

Rule 23 has no effect on the substance of the claims or plaintiffs’ burden of proof,

see 28 U.S.C. § 2072(b); Dukes, 131 S. Ct. at 2561 (recognizing that “the Rules

Enabling Act forbids interpreting Rule 23 to ‘abridge, enlarge or modify any

                                           7
substantive right’”), and consequently each member in a class must have a

potentially viable claim.

      Because the purpose of Rule 23 is efficiency, class certification under Rule

23 is appropriate only when a large number of plaintiffs share similar potentially

viable claims whose “truth or falsity” can be resolved one way or the other “in one

stroke,” thus making a single suit more efficient than multiple ones. Dukes, 131 S.

Ct. at 2551. That is what Rule 23(a)(2) means when it requires plaintiffs to show

that “there are questions of law or fact common to the class.”4 Id. at 2550–51. Put

another way, a class lacks the necessary cohesion if a single answer will not

“resolve an issue that is central to the validity of each one” of the class members’

claims. Id. at 2551.

      To assess whether the class is sufficiently cohesive to satisfy Rule 23(a)(2),

a court must conduct a “rigorous analysis” to determine whether the evidence and

law support the plaintiffs’ commonality theory. Id. The commonality analysis will

often overlap with plaintiffs’ merits contentions. Id. at 2551–52. In this case,

      4
        The key issue in this case is plaintiffs’ failure to establish commonality.
Because the panel’s analysis of the typicality question shares the same infirmities
as its commonality analysis, see Parsons II, 754 F.3d at 685–86; see also Dukes,
131 S. Ct. at 2551 n.5 (noting that the typicality and commonality inquiries “tend
to merge” (internal quotation marks omitted)), this dissent focuses solely on the
commonality analysis.


                                          8
plaintiffs’ underlying claim and theory of commonality is that the ADC’s defective

healthcare system is violating or will violate the Eighth Amendment rights of every

prisoner. Parsons II, 754 F.3d at 681. So the question becomes whether every

prisoner has a potential Eighth Amendment claim, whether those claims raise a

common question that is central to the validity of each claim, and whether that

question can be answered “yes” or “no” in one stroke.

                                             B

       To assess whether plaintiffs have satisfied Rule 23(a)(2), it is necessary to

understand when a prison healthcare problem rises to the level of an Eighth

Amendment violation.

       As the Supreme Court has explained, “[t]he Eighth Amendment does not

outlaw cruel and unusual ‘conditions’; it outlaws cruel and unusual

‘punishments.’” Farmer, 511 U.S. at 837. An alleged denial of adequate

healthcare may amount to the “‘unnecessary and wanton infliction of pain’

proscribed by the Eighth Amendment,” Estelle, 429 U.S. at 104 (citation omitted),

only if a prisoner can show that: (1) the prisoner had a “serious medical need[],”

id.; (2) the official was deliberately indifferent to that need, id., and (3) as a result,

the prisoner faced a “substantial risk of serious harm,” Farmer, 511 U.S. at 834.

Deliberate indifference means the official was “aware of facts from which the

                                             9
inference could be drawn that a substantial risk of serious harm exists, and he must

also draw the inference.” Id. at 837.

       The Supreme Court has made clear that not “every claim by a prisoner that

he has not received adequate medical treatment states a violation of the Eighth

Amendment.” Estelle, 429 U.S. at 105. In Estelle for instance, a prisoner alleged

that he suffered a disabling back injury and incapacitating pain that was

exacerbated when the prison authorities failed to adequately diagnose or treat his

condition, id. at 98–101, 107; in short, it was “a crude attempt to challenge the

system of administering medical care in the prison” where the prisoner was

confined, id. at 109 (Stevens, J., dissenting). The majority rejected this claim,

stating that “[a]t most” the allegedly inadequate treatment the prisoner received

amounted to “medical malpractice,” not “cruel and unusual punishment.” Id. at

107.

       Since then, the Supreme Court has clarified that an Eighth Amendment

violation does not arise merely by being incarcerated in a prison with defective

systems. See Lewis, 518 U.S. at 349–51. In Lewis, 22 inmates of various Arizona

prisons brought a class action “on behalf of all adult prisoners who are or will be

incarcerated” by the ADC on the ground that the ADC’s substandard library and

legal support programs deprived the prisoners of their constitutional “rights of

                                          10
access to the courts and counsel.” Id. at 346. The district court agreed and entered

a detailed injunction requiring the ADC to make “sweeping changes” at both a

macro and micro level to the challenged system. Id. at 347–48.

      The Supreme Court reversed, finding that the prisoners’ allegations

regarding the inadequacies of the prison’s legal program failed to meet the

“constitutional prerequisite” that these inadequacies had caused them “actual

injury.” Id. at 349, 351 (explaining that the requirement that a prisoner “must

show actual injury” to sufficiently allege a constitutional violation “derives

ultimately from the doctrine of standing, a constitutional principle that prevents

courts of law from undertaking tasks assigned to the political branches”). The

Court noted that the distinction between the role of the courts and that of the

political branches of government “would be obliterated if, to invoke intervention of

the courts, no actual or imminent harm were needed, but merely the status of being

subject to a governmental institution that was not organized or managed properly.”

Id. at 350. The Court concluded that merely being a prisoner in an institution with

a defective legal assistance program or library does not constitute actual or

imminent harm. See id. at 351. Rather, the prisoner would have to “go one step

further and demonstrate that the alleged shortcomings in the library or legal

assistance program hindered his efforts to pursue a legal claim.” Id.

                                          11
      Critically, the Court analogized a prison’s legal system to a prison’s

healthcare system, and noted that merely being a prisoner in an institution with a

defective medical care system did not constitute an actual injury or raise a

constitutional claim. Id. at 350. Because Estelle established no constitutional right

to a prison hospital, “a healthy inmate who had suffered no deprivation of needed

medical treatment” could not “claim violation of his constitutional right to medical

care, simply on the ground that the prison medical facilities were inadequate.” Id.

(citation omitted). Otherwise, courts would be usurping the responsibility of

ensuring adequate medical care in prisons, which would erase “the essential

distinction between judge and executive.” Id.

      Although the Court in Lewis did not have to analyze whether the district

court had erred in certifying the class of prisoners, Lewis explicitly relied on

Estelle to confirm that a claim “that the prison medical facilities were inadequate”

does not by itself establish deliberate indifference to a substantial risk of serious

injury. Id. As the Court elsewhere explained, “[n]othing so amorphous as ‘overall

conditions’ can rise to the level of cruel and unusual punishment when no specific

deprivation” can be identified. Wilson, 501 U.S. at 305. The Eighth Amendment

requires a prisoner to articulate how a particular deficit creates a substantial risk of

serious harm in light of the serious medical needs of that prisoner or group of

                                           12
prisoners. See Estelle, 429 U.S. at 104.

                                           III

      Putting the Eighth Amendment and Rule 23 frameworks together, the

plaintiffs here must establish that each prisoner in Arizona (the proposed class) has

an Eighth Amendment deliberate indifference claim raising a common question

that can be resolved “in one stroke.” Dukes, 131 S. Ct. at 2551. But all Arizona

prisoners do not share a common Eighth Amendment claim for at least two

reasons.

                                           A

      First, the proposed class here includes healthy prisoners who, under Lewis,

cannot assert an Eighth Amendment claim merely because they are housed in an

institution with a defective medical system. See 518 U.S. at 349–51; see also

Parsons II, 754 F.3d at 678–79 (acknowledging that the proposed class includes

prisoners who are currently healthy). Because the proposed class includes healthy

prisoners who have no claim, there is no commonality.

      The panel holds that even healthy prisoners, who are not presently in need of

medical, dental, or mental health treatment, may become ill at some point in their

incarceration and therefore have the same Eighth Amendment claim as each of

their fellow inmates. Parsons II, 754 F.3d at 678–79 (claiming that any prisoner

                                           13
“could easily fall ill, be injured, need to fill a prescription, require emergency or

specialist care, crack a tooth, or require mental health treatment”). But this risk is

too attenuated for an Eighth Amendment claim. See Farmer, 511 U.S. at 834

(holding that an Eighth Amendment deliberate indifference claim requires an

“objectively, sufficiently serious” deprivation and the prison officials must “have a

sufficiently culpable state of mind” in being deliberately indifferent to such

deprivation (internal quotation marks omitted)); Estelle, 429 U.S. at 104 (holding

that a deliberate indifference claim requires a “serious medical need[]”). If a

plaintiff who is the victim of medical malpractice due to a poorly functioning

prison healthcare system does not have an Eighth Amendment claim, Estelle, 429

U.S. at 107, a plaintiff who is in perfect health with no need for medical assistance

does not have one either. Indeed, the panel’s broad and loose formulation of the

common claim (because all prisoners may have medical needs in the future, the

defective medical system creates a substantial risk of serious injury to each

prisoner) is equally applicable to any prison condition: under the panel’s theory,

for example, because all prisoners may at some point in the future want to bring a

legal claim, a subpar legal assistance program violates the constitutional rights of

each prisoner. This was the very approach rejected in Lewis.

      To avoid this fatal flaw in the class, the panel theorizes that the prisoners

                                           14
here are bringing a different type of Eighth Amendment claim altogether: an

institutional reform Eighth Amendment claim. See Parsons II, 754 F.3d at 676.

According to the panel, while a prisoner can bring an Eighth Amendment claim

because “the care provided on any particular occasion to any particular inmate (or

group of inmates) was insufficient,” both the Supreme Court and our court have

recognized that prisoners can also bring an institutional reform Eighth Amendment

claim when a prison system’s “policies and practices of statewide and systemic

application expose all inmates . . . to a substantial risk of serious harm.” Id.

      Although the panel asserts that “[t]his kind of claim is firmly established in

our constitutional law,” id., none of the cases cited by the panel discusses or

recognizes an institutional reform Eighth Amendment claim that has different

elements than those set forth in Farmer v. Brennan. Brown v. Plata, 131 S. Ct.

1910 (2011), upon which the panel relies, did not adjudicate an Eighth Amendment

claim or consider the appropriate scope of a class action. Rather, Plata examined

whether a three-judge panel had exceeded its authority in issuing a remedial order

under the Prison Litigation Reform Act of 1995 (PLRA) in two consolidated cases,

Coleman v. Brown (involving a class action by the class of seriously mentally ill

persons in California prisons) and Plata v. Brown (involving the class of state

prisoners with serious medical conditions in which the state “conceded that

                                           15
deficiencies in prison medical care violated prisoners’ Eighth Amendment rights”).

Id. at 1922–23, 1926. But even if the class certification issue had been before the

Court, Plata involved the certification of two discrete classes: those prisoners with

“serious mental disorders,” and those with “serious medical conditions.” Id. at

1922. These discrete classes may have sufficiently similar serious medical needs

to meet the standard in Farmer in a way the proposed class here does not.

      The panel also points to Supreme Court and Ninth Circuit cases which it

argues held that institutional reform claims were separate, and had different

elements, than individual Eighth Amendment claims. Parsons II, 754 F.3d at 677

(citing Helling v. McKinney, 509 U.S. 25 (1993); Graves v. Arpaio, 623 F.3d 1043

(9th Cir. 2010); and Wallis v. Baldwin, 70 F.3d 1074 (9th Cir. 1995)). But none of

these cases addressed the panel’s “two-types-of-Eighth Amendment claims”

theory. Prisoners who are exposed to a disease-causing agent, such as second-hand

smoke, Helling, 509 U.S. at 35, asbestos-containing material, Wallis, 70 F.3d at

1076–77, or high temperatures that induced heat-related illness in pretrial detainees

taking psychotropic medications, Graves, 623 F.3d at 1049–50, may meet the

standard in Farmer and can bring such an Eighth Amendment claim. But the

prisoners in this case are exposed only to the ADC’s policy, which is not alleged to

be itself pathogenic, and is insufficient to constitute an Eighth Amendment

                                         16
violation in light of Lewis. Accordingly, because the proposed class here includes

healthy prisoners who do not have an Eighth Amendment claim (or a nonexistent

institutional reform Eighth Amendment claim), it does not meet Rule 23’s

commonality requirement under Dukes.

                                          B

      Second, the panel’s attempted formulation of a common Eighth Amendment

claim fails because even those prisoners who are not healthy do not have the

sufficiently similar serious medical needs necessary to raise a common Eighth

Amendment issue under Dukes. The expert testimony, which the panel cites at

length, Parsons II, 754 F.3d at 669–72, shows only that a range of inmates with

different medical needs may be able to demonstrate deliberate indifference to a

substantial risk of serious harm based on a range of different policies. Dr. Cohen, a

prison healthcare expert, identified a number of medical care practices that pose “a

substantial risk of serious harm to prisoners who require medical care.” Id. at 669

(emphasis added). No evidence established that all prisoners presently require

medical care. Similarly, Dr. Stewart, an expert in correctional mental health care,

opined that ADC mental health practices give rise to “a substantial risk of serious

harm to prisoners who require mental health care.” Id. at 671 (emphasis added).

Again, not all prisoners presently require mental health care. Moreover, because

                                         17
the prisoner with severe depression and the prisoner with a cavity require different

levels of care, the former may receive care inconsistent with Eighth Amendment

requirements (and thus have an Eighth Amendment claim) while the latter does

not.

       Because of the diversity of needs of prisoners, a more targeted analysis is

required to determine whether a particular policy manifests deliberate indifference

to a specific type of medical (or dental or mental health) need. And so the question

of whether the ADC’s conduct violates the Eighth Amendment rights of these

prisoners cannot be answered in a single stroke, because there can be no common

answer to questions regarding the seriousness of the medical need and the

adequacy of the care for the full range of prisoners. The panel’s attempted

formulation of a question common to all classes of prisoners (whether “ADC

policies and practices of statewide and systemic application expose all inmates in

ADC custody to a substantial risk of serious harm,” Parsons II, 754 F.3d at 676)

does not survive Dukes. The Court acknowledged that the proposed class in Dukes

could formulate common questions (“Do our managers have discretion over pay?

Is that an unlawful employment practice?”) but held that “[r]eciting these questions

is not sufficient to obtain class certification,” because doing so did not establish

that the class members suffered the same kind of violation. 131 S. Ct. at 2551.

                                           18
The panel’s common question here suffers from the same flaw.

      This is not to say, as the panel claims, that such a targeted analysis means

that “Eighth Amendment claims can never be brought in the form of a class

action.” Parsons II, 754 F.3d at 675–76. To the contrary, the panel itself

recognizes that the district court here may have been able to certify “numerous

separate classes or subclasses, separating out groups of policies and practices.” Id.

at 679 n.21. If each prisoner in such a subgroup could raise a common Eighth

Amendment claim that can be answered in one stroke, certification of that subclass

may very well have been appropriate under Rule 23. Dukes, 131 S. Ct. at 2551.

But just because there may be subclasses of prisoners that can state common

questions that can be resolved in one stroke as to each specific group does not

mean that certification of a class of every prisoner in the Arizona prison system is

permissible under Dukes.

      Furthermore, the Third Circuit has expressly rejected the theory that

prisoners with diverse medical needs have a common Eighth Amendment claim of

the sort endorsed by the panel. In Rouse v. Plantier, then-Judge Alito (writing for

the court) reversed the district court’s summary judgment order in favor of a class

of all past, present, and future diabetic prisoners who pressed an Eighth

Amendment medical care claim. 182 F.3d at 194, 198. Rouse noted that the record

                                          19
showed that “not all insulin-dependent diabetics require the same level of medical

care,” id. at 198, and that it was therefore “possible that conduct that violates the

Eighth Amendment rights of the unstable [diabetics] may not violate the

constitutional rights of the stable [diabetics],” id. at 199. Rouse observed that the

“constitutional right asserted by the plaintiff class—the Eighth Amendment right

of a prisoner to be free from deliberate indifference to his or her serious medical

needs—is one that obviously varies depending on the medical needs of the

particular prisoner.” Id. Accordingly, “[i]n light of the diverse medical needs of,

and the different level of care owed to, each group of plaintiffs,” and because the

nature of the Eighth Amendment claim “varies depending on the medical needs of

the particular prisoner,” Rouse held that the district court erred in holding that all

members of the proposed class could allege a general claim of deliberate

indifference. See id. The court noted that “there may be one or more subgroups of

plaintiffs as to whom particular aspects of the care allegedly provided was not

consistent with Eighth Amendment requirements and other subgroups as to whom

particular aspects of the care was constitutionally adequate.” Id. Consequently,

the Third Circuit sent the case back to the district court to “consider the individual

needs of each relevant subgroup of plaintiffs,” to evaluate “the appropriate level of

care due under the Eighth Amendment,” and only then to “determine whether the

                                           20
defendants’ actions with respect to each of these matters and with respect to each

relevant subgroup of plaintiffs were consistent with the requisite level of care owed

under the Eighth Amendment at the times in question.” Id.

      Here, the panel takes the opposite approach. Where the Third Circuit held it

was error to conclude “on a wholesale basis” that different types of diabetic

prisoners had “alleged a violation of their Eighth Amendment rights,” id. at 198,

the panel here holds that the district court correctly aggregated the Eighth

Amendment claims of all prisoners in the ADC, in all their medical diversity, on

the basis of a general claim of deliberate indifference, Parsons II, 754 F.3d at

678–79. And where Rouse recognized that a different level of care was due to each

group of diabetic prisoners to avoid violating their Eighth Amendment rights, and

required the district court to carefully calibrate what would constitute deliberate

indifference as to each subclass of prisoner, Rouse, 182 F.3d at 199, the panel here

opts for the one-size-fits all model of Eighth Amendment jurisprudence, even

though the diversity of the prisoners’ medical needs was established by the record.

See, e.g., Parsons II, 754 F.3d at 664. In light of Dukes, the approach adopted by

Rouse is correct, and the approach adopted by the panel is not. See Dukes, 131 S.

Ct. at 2551–52.

                                          C

                                          21
      In short, under Rule 23 and the Eighth Amendment, the 33,000 prisoners in

the Arizona prison system do not have an Eighth Amendment claim that raises a

common question. The record does not show that every prisoner—the healthy as

well as the sick—has (1) a serious medical need, such that (2) the ADC’s alleged

deliberate indifference (through their systemic practices and policies), (3) placed

each prisoner at a substantial risk of serious harm. See Farmer, 511 U.S. at 834;

Estelle, 429 U.S. at 106. Rather, the record shows that the constitutional rights of

various subgroups of prisoners to be free from deliberate indifference to serious

medical needs “varies depending on the medical needs of the particular prisoner,”

Rouse, 182 F.3d at 199, and does not raise a question that can be answered in one

stroke. The panel’s contrary holding is wrong.

                                           IV

      The plaintiffs here have identified significant problems with medical care in

the Arizona prison system. Every prisoner or group of prisoners that faces a

substantial risk of serious injury from these deficiencies is entitled to raise an

Eighth Amendment claim. In fact, there are a number of smaller classes or

subclasses that might comply with Rule 23. For example, the complaint alleged

that “[d]efendants have a policy and practice of not providing prisoners with the

full course of their medication, not providing prisoners medication as prescribed or

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in a timely fashion, and inappropriately starting and stopping medication.”

Parsons II, 754 F.3d at 664. A subclass of prisoners who are currently receiving

medication might all face a sufficiently similar substantial risk of harm to satisfy

Rule 23(a)(2), because there is the requisite fit between the legal theory, evidence,

and the governing law. Indeed, the panel notes that the district court could “have

certified numerous separate classes or subclasses, separating out groups of policies

and practices.” Id. at 679 n.21.

      But Dukes and the Eighth Amendment cases require such a tailored

approach; it is not just one option among many. Here the panel certifies a class

that on its face lacks the requisite commonality: it includes healthy prisoners who

have no Eighth Amendment claims, as well as prisoners with diverse medical

needs whose claims must be considered individually. Their claims cannot be

answered “yes or no” in one stroke. The panel’s broad and general formulation of

the prisoners’ claim—because all Arizona prisoners are subject to the same

defective medical system, they face a substantial risk of a serious harm, regardless

of the myriad individual differences across a prisoner population, Parsons II, 754

F.3d at 678—is based on a misreading of Rule 23 and the Supreme Court’s Eighth

Amendment jurisprudence, and also conflicts with the Third Circuit. And by

leaving this decision in place, the court establishes this misreading as the law of

                                          23
our circuit. I dissent from the circuit’s unfortunate acquiescence to an opinion that

is directly contrary to Supreme Court precedent.




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