561 F.Supp.3d 93
D.N.H.2021Background
- Petitioner Robson Xavier Gomes brought a 28 U.S.C. § 2241 habeas petition on behalf of himself and a putative class of civil immigration detainees at the Strafford County House of Corrections (SCHOC), alleging Fifth Amendment due-process violations from COVID-19–related conditions of confinement.
- Relief sought: declaratory judgment that conditions are unconstitutional; injunctive relief to (a) establish expedited bail-review procedures for class members, and (b) reduce population or modify conditions to permit adequate social distancing.
- Court had provisionally certified the class for expedited bail hearings; Gomes moved for final class certification under Fed. R. Civ. P. 23.
- Respondents challenged numerosity, commonality, and typicality; the court conducted the required rigorous Rule 23 analysis and considered Rule 23(b)(2) criteria for injunctive/declaratory class relief.
- The court found numerosity met (facility population generally >40 and high turnover), commonality and typicality satisfied (shared injury and legal theory of deliberate indifference/constitutional deprivation), and (b)(2) appropriate because classwide injunctive/declaratory relief could remedy the harm.
- Court certified the class of all individuals held in civil immigration detention at SCHOC, appointed Gomes as class representative, and appointed Gilles Bissonnette (ACLU-NH) and Scott O’Connell (Nixon Peabody) as class counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Numerosity | Class size exceeds 40; high turnover makes joinder impracticable. | Only 19 were proposed for bail hearings (two withdrawn), so joinder practicable. | Numerosity satisfied: evidence supports >40 members and future influx makes joinder impracticable; relaxed showing for injunctive class. |
| Commonality | All detainees share common conditions that impede social distancing; common questions: officials' knowledge and failure to mitigate risk. | Individual health risks, changing conditions over time, differing statutory detention bases and release considerations defeat commonality. | Commonality satisfied: low bar met; single common contention can generate classwide answers. |
| Typicality | Gomes suffered same injury from the same course of conduct and advances same legal theory (deliberate indifference/Fifth Amendment). | Individual differences in health, statutory status, and danger to community render Gomes atypical. | Typicality satisfied: Gomes' claims arise from same conduct and legal theory as class members. |
| Rule 23(b)(2) / Injunctive Relief Applicability | Seeks classwide declaratory and injunctive relief (declaration, expedited bail process, population reduction or facility modifications) that would apply uniformly. | Release decisions and statutory differences require individualized tailoring, undermining (b)(2). | (b)(2) satisfied: indivisible declaratory/injunctive remedies can provide relief to all members without substantial individual tailoring; class certified and counsel appointed. |
Key Cases Cited
- Amchem Prod., Inc. v. Windsor, 521 U.S. 591 (establishes class-certification prerequisites and standards)
- Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (requires rigorous commonality analysis; single common question can suffice)
- Leite v. Bergeron, 911 F.3d 47 (1st Cir.) (elements of a Fifth Amendment due-process claim for detainees)
- In re Nexium Antitrust Litig., 777 F.3d 9 (1st Cir.) (district court must undertake rigorous Rule 23(a) analysis)
- McCuin v. Sec'y of Health & Human Servs., 817 F.2d 161 (1st Cir.) (numerosity relaxed when class seeks only injunctive/declaratory relief)
- Garcia-Rubiera v. Calderon, 570 F.3d 443 (1st Cir.) (discusses typicality and numerosity guidance)
- Reid v. Donelan, 297 F.R.D. 185 (D. Mass.) (certification principles for detention classes with changing populations)
- Savino v. Souza, 453 F. Supp. 3d 441 (D. Mass.) (recent detention/COVID-19 class certification decision)