                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 05-2750
                                     ___________

Elizabeth M., et al., on behalf of        *
themselves and on behalf of others        *
similarly situated,                       *
                                          *
      Plaintiffs - Appellees,             * Appeal from the United States
                                          * District Court for the
      v.                                  * District of Nebraska.
                                          *
Nancy Montenez, et al.,                   *
                                          *
      Defendants - Appellants.            *
                                     ___________

                                Submitted: February 15, 2006
                                   Filed: August 15, 2006
                                    ___________

Before LOKEN, Chief Judge, BOWMAN and SMITH, Circuit Judges.
                             ___________

LOKEN, Chief Judge.

       This is a putative class action filed by sixteen present and former female
patients at Nebraska’s three residential mental health facilities -- the Lincoln Regional
Center (LRC), the Norfolk Regional Center (NRC), and the Hastings Regional Center
(HRC). Plaintiffs seek declaratory and injunctive relief against the Director of the
Nebraska Department of Health and Human Services and the Chief Executive Officers
and the Clinical Directors of the three facilities, all sued in their official capacities.
The complaint alleges that these seven defendants are violating plaintiffs’ federal
constitutional and statutory rights by failing to protect them from sexual and physical
assaults by male patients and staff, and by failing to adequately treat their mental
illnesses and developmental disabilities. The district court certified a single class for
these disparate claims:

      All women who were subjected to rape, sexual assault, sexual
      harassment, sexual exploitation, and physical assault, while in the care
      and custody of Nebraska Health and Human Services System (NHHSS)
      as residents at one or more of the NHHSS residential mental health
      facilities; and all women who are currently, or in the future will be, in the
      care and custody of the NHHSS and placed as residents at one or more
      of the NHHSS residential mental health facilities.

We agreed to review defendants’ interlocutory appeal of this order under Rule 23(f)
of the Federal Rules of Civil Procedure. See generally Prado-Steiman v. Bush, 221
F.3d 1266, 1271-77 (11th Cir. 2000). We conclude plaintiffs failed to satisfy the
requirements of Article III and Rule 23, and the district court abused its discretion in
presuming these requirements were satisfied. See In re Milk Prods. Antitrust Litig.,
195 F.3d 430, 436 (8th Cir. 1999), cert. denied, 529 U.S. 1038 (2000) (standard of
review). We therefore vacate the class certification order.

                                           I.

       The named plaintiffs are women who are or were involuntarily confined at
LRC, NRC, and/or HRC. One plaintiff, Caroline C., was the named plaintiff in a prior
class action alleging failure to protect patients at HRC from assaults by male patients.
The district court certified a class consisting of all women who had been sexually
assaulted or raped by male patients at HRC plus all current and future residents of that
facility. Caroline C. v. Johnson, 174 F.R.D. 452 (D. Neb. 1996). The court
subsequently approved a consent decree that went far beyond patient safety issues,
committing state officials to detailed provisions mandating “the development and
implementation of appropriate mental health treatment for class members.” Caroline


                                          -2-
C. v. Johnson, Case No. 4:CV95-22 (D. Neb. Oct. 29, 1998). That decree expired by
its own terms on December 31, 2000. In this action, plaintiffs expanded their causes
of action to include both safety and treatment claims and broadened the purported
class to include women at all three regional facilities. Plaintiffs urged the district
court to exercise jurisdiction under the expired Caroline C. consent decree, but the
court denied the request. That ruling is not before us.

       Ten plaintiffs allege they were sexually assaulted by facility employees, nine
by the same staff member at LRC and one by a different staff member at NRC. One
plaintiff alleges she was sexually harassed by a staff member at NRC. Five plaintiffs
allege they were sexually assaulted by male residents at LRC and NRC. Five
plaintiffs allege they were denied adequate mental health trauma treatment at one or
more of the facilities. Three plaintiffs allege they were denied adequate trauma
treatment after discharge. All plaintiffs allege that defendants failed to provide:

      appropriate and effective nursing care, medical care, academic
      instruction, occupational therapy, social, and independent living skills
      training, recreational therapy, vocational training and rehabilitative,
      psychological testing, psychiatric care, individualized training,
      meaningful physical education, discharge planning and the provision for
      a system of community-based mental health residential facilities
      designed to meet the individual needs of Plaintiffs.

Plaintiffs allege violations of their rights under “the First, Fourth, Fifth, Ninth, and
Fourteenth Amendments of the U.S. Constitution,” Title II of the Americans with
Disabilities Act, 42 U.S.C. §§ 12101, et seq., and Section 504 of the Rehabilitation
Act, 29 U.S.C. § 794.1


      1
        Title II and § 504 prohibit public entities from denying qualified individuals
with services and programs on account of their disabilities. Though § 504 is limited
to state and local programs receiving federal assistance, the statutes are “similar in
substance.” Randolph v. Rodgers, 170 F.3d 850, 858 (8th Cir. 1999).

                                          -3-
        Plaintiffs’ class action complaint requests sweeping injunctive relief which, if
granted, would require the district court to mandate and monitor detailed programs
governing nearly every facet of the State’s operation of the three residential facilities
-- patient risk assessment, placement, and discipline; staff leadership structure; prehire
procedures and training for staff; sex education and sexual expression policies;
creation of “all women safe units” and a “Woman’s Council” selected by class
members at each facility; a “trauma treatment model” that includes “biological
(medications), psychological, [and] psychosocial” components; and programs for
“mental health treatment and rehabilitation consistent with the individual needs” of
each class member. The complaint also seeks a declaratory judgment that defendants
have violated plaintiffs’ constitutional and statutory rights.

                                           II.

       By certifying a single class action to litigate this broad array of claims and
prayers for relief, the district court has essentially conferred upon itself jurisdiction
to assert control over the operation of three distinct mental health facilities, a major
component of Nebraska state government. A federal court may not lightly assume this
power. “Where, as here, the exercise of authority by state officials is attacked, federal
courts must be constantly mindful of the special delicacy of the adjustment to be
preserved between federal equitable power and State administration of its own law.”
Rizzo v. Goode, 423 U.S. 362, 378 (1976) (quotation omitted); see Angela R. v.
Clinton, 999 F.2d 320, 326 (8th Cir. 1993) (“Federal courts operate according to
institutional rules and procedures that are poorly suited to the management of state
agencies.”). Moreover, as the sweeping consent decree in Caroline C. illustrates, this
concern is heightened in the class action context because of the likelihood that an
order granting class certification “may force a defendant to settle rather than incur the
costs of defending a class action and run the risk of potentially ruinous liability.”
Advisory Committee Notes to 1998 Amendments adopting Rule 23(f). Consequently,
before certifying a class seeking broad injunctive relief against a state agency, a

                                           -4-
district court must ensure that it has Article III jurisdiction to entertain each claim
asserted by the named plaintiffs. See Rivera v. Wyeth-Ayerst Labs., 283 F.3d 315,
319 n.6 (5th Cir. 2002); Prado-Steiman, 221 F.3d at 1279-80. And the court must
conduct a “rigorous analysis” to ensure that the prerequisites of Rule 23 are satisfied.
Gen. Tel. Co. of the S.W. v. Falcon, 457 U.S. 147, 161 (1982).

                                           III.

        Plaintiffs’ complaint seeks only equitable relief because Nebraska’s Eleventh
Amendment immunity would bar damage claims in federal court against these
defendants acting in their official capacities. See Murphy v. State of Arkansas, 127
F.3d 750, 754 (8th Cir. 1997). To have Article III standing to seek prospective relief,
plaintiffs must show they are likely to suffer future injury that will be remedied by the
relief sought. James v. City of Dallas, 254 F.3d 551, 563 (5th Cir. 2001), cert. denied,
534 U.S. 113 (2002). “Past exposure to illegal conduct” is not enough absent present
adverse effects. City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983) (quotation
omitted); see Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 108-09
(1998). For this reason, a claim for equitable relief altering the custodial conditions
at a state institution normally becomes moot when the plaintiff is no longer subject to
the challenged conditions. See Inmates of Lincoln Intake & Detention Facility v.
Boosalis, 705 F.2d 1021, 1023-24 (8th Cir. 1983). Therefore, defendants argue,
former patients who allege they were victims of assaults or inadequate treatment in the
past are not proper members of the class. On this record, we agree.

       When the district court certified the class, fourteen of the sixteen named
plaintiffs no longer resided at any of the three facilities. Nearly all the relief sought
in the complaint addresses future conditions within the facilities. These fourteen
plaintiffs, like other class members who no longer reside at the facilities, are not likely
to suffer a future injury that will be remedied by this relief unless they are
recommitted to one of the facilities, in which case they would enjoy the benefits of

                                           -5-
any injunctive relief that may be granted as members of the class of future residents.
Moreover, the presence of former residents in the class poses a substantial risk to the
“efficiency and economy of litigation which is a principal purpose” behind the class
action device. Gen. Tel. Co., 457 U.S. at 159. Adjudication of their claims for a
declaratory judgment that prior assaults violated their rights is not necessary to the
claims for injunctive relief but threatens to violate the State’s Eleventh Amendment
immunity from damage claims. In these circumstances, the district court abused its
discretion by including present and former residents in a single, essentially
unmanageable class.2

        The former residents also claim constitutional and statutory rights to adequate
mental health treatment after their discharge from defendants’ facilities. As to this
claim, they obviously have a present interest sufficient to confer standing to seek
injunctive relief. But the claim of a federal constitutional right to non-custodial
mental health treatment is highly dubious and has little in common with the
constitutional claims of present residents. See DeShaney v. Winnebago County Dept.
of Social Servs., 489 U.S. 189, 199-201 (1989). Any claim for post-discharge relief
under state law would be barred by the State’s Eleventh Amendment immunity. See
Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89 (1984). Thus, the former
residents’ right to class-wide post-discharge relief turns on their claims to a right to
such treatment under Title II of the ADA or § 504 of the Rehabilitation Act. Their
complaint and class certification motion papers were silent as to the specific statutory
or regulatory basis for these claims. In these circumstances, the district court abused
its discretion (i) in combining former residents’ claims for post-discharge relief with


      2
        We reject plaintiffs’ contention that this is a case where a named plaintiff may
represent the class despite the loss of a personal stake in the relief sought because the
claim is "capable of repetition, yet evading review." United States Parole Comm’n
v. Geraghty, 445 U.S. 388, 398 (1980). As the remaining two named plaintiffs
illustrate, long-term residents with a present stake in the relief sought are available to
better represent the class of present and future residents.

                                           -6-
present residents’ disparate claims into a single, unmanageable class action, and (ii)
in ruling without discussion that the named plaintiffs who are former residents
sustained their burden of demonstrating that all Rule 23 requirements are satisfied for
the certification of a separate class for post-discharge claims.

                                           IV.

        When the class was certified, Caroline C. and Susan Z. were the only named
plaintiffs residing in one of the three mental health facilities and therefore eligible to
represent a class of present and future residents seeking equitable relief to improve
conditions within the facilities. See East Texas Motor Freight Sys. v. Rodriguez, 431
U.S. 395, 403 (1977) (“A class representative must be part of the class and possess the
same interest and suffer the same injury as the class members.”). Our remaining task
is to determine whether these two named plaintiffs satisfy all the requirements of Rule
23(a) and Rule 23(b)(2) with respect to the causes of action asserted. Rule 23(a)
provides that no class action may be certified unless the court determines:

      (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.

If the requirements of Rule 23(a) are met, Rule 23(b)(2) provides that a non-opt-out
class may be certified if “the party opposing the class has acted or refused to act on
grounds generally applicable to the class, thereby making appropriate final injunctive
relief or corresponding declaratory relief with respect to the class as a whole.”3


      3
       The district court erred in also certifying the non-opt-out class under Rule
23(b)(1)(B) without considering the impact that adjudication of the broad prayer for
declaratory relief might have on class members’ damage claims for sexual and

                                           -7-
       The Failure To Protect Claims. The complaint alleges that Caroline C. was
sexually assaulted by a male resident of LRC, that defendants were aware such
conduct was occurring but took no corrective actions, and that this failure to protect
was part of “a pattern or series of incidents of unconstitutional conduct.” Susan Z.,
the other resident named plaintiff, does not allege an assault claim.

       When a person is involuntarily confined in a state mental health facility, the
State has a duty imposed by the Substantive Due Process Clause of the Fourteenth
Amendment to provide a “reasonably safe environment.” Beck v. Wilson, 377 F.3d
884, 890 (8th Cir. 2004). To recover under § 1983 for a breach of that constitutional
duty, a plaintiff must prove that a state official either intentionally violated the duty
(such as criminal assault by a staff member) or was deliberately indifferent to a known
excessive risk to patient safety (such as assault by another patient). See Revels v.
Vincenz, 382 F.3d 870, 874-75 (8th Cir. 2004). In addition, when the claim is, as
here, against the institution’s supervisors for inadequate safety policies, plaintiff must
prove (i) that an employee violated her due process right to safety, (ii) that
institutional policies led to the violation, and (iii) that the policies were adopted with
deliberate indifference to their known or obvious consequences. See Pietrafeso v.
Lawrence County, No. 05-1038, slip op. at 6-7 (8th Cir. Jul. 11, 2006), applying
Board of County Comm’rs v. Brown, 520 U.S. 397, 407 (1997).

      Though class certification is not the time to address the merits of the parties’
claims and defenses, the “rigorous analysis” under Rule 23 must involve consideration
of what the parties must prove. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591,
622-23 & n.18 (1997); Coopers & Lybrand v. Livesay, 437 U.S. 463, 469 & n.12
(1978). Here, that prompts the following Rule 23 concerns:




physical assaults. The Supreme Court has cautioned against “adventurous application
of Rule 23(b)(1)(B).” Ortiz v. Fibreboard Corp., 527 U.S. 815, 845 (1999).

                                           -8-
      • Though plaintiffs’ assault claims focus on the institutional policies defendants
adopted in their official capacities, each assault claim initially requires proof that
another employee of one residential facility violated that class member’s substantive
due process right to safety. The presence of a common legal theory does not establish
typicality when proof of a violation requires individualized inquiry. See Parke v. First
Reliance Stnd. Life Ins. Co., 368 F.3d 999, 1004-05 (8th Cir. 2004). A substantive
due process claim invariably “demands an exact analysis of circumstances before any
abuse of power is condemned.” County of Sacremento v. Lewis, 523 U.S. 833, 850
(1998). Given these individualized issues, why is Caroline C.’s assault claim typical
of other class members’ claims?

        • The alleged assault of Caroline C. occurred at LRC. No named plaintiff who
is currently a resident alleged a failure to protect claim arising at NRC or HRC. There
can be no failure-to-protect liability at NRC or HRC unless a non-defendant employee
at that facility violated patient safety rights. Thus, present and future patients at NRC
and HRC may not be members of this failure-to-protect class.

       • The proof needed to establish an essential predicate to the substantive due
process claim against the supervisory defendants -- unconstitutional conduct by a non-
defendant employee -- will differ greatly if the claim is failure to protect from
intentional staff member assault as opposed to assault by a fellow resident, which
requires proof of deliberate indifference to that risk by on-site staff. The former are
not typical of the latter. See Jones v. Takaki, 38 F.3d 321, 323-24 (7th Cir. 1994).4




      4
        We do not mean to suggest that institutional failure-to-protect claims are never
suitable for resolution by class action. Depending on the circumstances, a more
focused claim on behalf of a more uniform class may well be appropriate for class
certification. See Jensen v. Clarke, 94 F.3d 1191 (8th Cir. 1996) (random assignment
of violent inmates to overcrowded prison cells).

                                          -9-
       The Inadequate Treatment Claims. In addition to the failure-to-protect claims,
the complaint alleges that defendants have violated class members’ constitutional and
statutory rights by failing “to provide appropriate essential services necessary for the
treatment, habilitation, rehabilitation, and amelioration of the Plaintiffs’ mental
illnesses and/or developmental disabilities.” The complaint and class action motion
papers did not identify one or more policies or practices common to all three facilities
that caused these alleged violations. Instead, plaintiffs pleaded a laundry list of
desired policy changes, alleged that their injuries are caused by the absence of these
policies, and asserted that Rule 23's requirements are satisfied because all class
members live in facilities where the desired policies are absent.

        Although the complaint alleged in detail the kinds of treatment plaintiffs
demand, it only vaguely described the treatment that named plaintiffs Caroline C. and
Susan Z. required but were denied, alleging that each woman was denied “adequate”
or “appropriate” “mental health trauma treatment.” This dearth of detail, combined
with a claim that puts in issue every facet of mental health treatment, makes it
impossible to evaluate (i) whether the treatment needs and injuries of Caroline C. or
Susan Z. are typical of other class members; (ii) what specific policies or practices
violate plaintiffs’ constitutional or statutory rights, causing redressable injuries, and
why; and (iii) the extent to which the treatment claims are common to all three
facilities. As the Supreme Court said in reversing an improvidently broad class-wide
injunction against the Arizona Department of Corrections:

      It is the role of courts to provide relief to claimants, in individual or class
      actions, who have suffered, or will imminently suffer, actual harm; it is
      not the role of courts, but that of the political branches, to shape the
      institutions of government in such fashion as to comply with the laws
      and the Constitution.

Lewis v. Casey, 518 U.S. 343, 349 (1996). The district court abused its discretion in
not conducting a rigorous analysis of these issues.

                                           -10-
       Moreover, combining the failure-to-protect claims and the right-to-custodial-
treatment claims in a single class action raises additional Rule 23 issues because the
Supreme Court has recognized a substantive due process right to reasonably safe
custodial conditions, but not a broader due process right to appropriate or effective or
reasonable treatment of the illness or disability that triggered the patient’s involuntary
confinement. See Youngberg v. Romeo, 457 U.S. 307, 316-19 (1982); Ass’n for
Retarded Citizens of N.D. v. Sinner, 942 F.2d 1235, 1239-40 (8th Cir. 1991). Given
these differing legal standards, the individualized nature of all substantive due process
inquiries, and plaintiffs’ failure to identify the specific policies under attack and the
nature of their federal statutory claims, the massive class action certified neither
promotes the efficiency and economy underlying class actions nor pays sufficient heed
to the federalism and separation of powers principles emphasized in Rizzo v. Goode,
Lewis v. Casey, and other cases.

      The district court’s Memorandum and Order dated May 11, 2005, is vacated,
and the case is remanded for further proceedings not inconsistent with this opinion.
                       ______________________________




                                          -11-
