Calvin Henson v. SCDCCalvin Henson v. SCDC
Andrew F. Lindemann, Lindemann Law Firm, P.A., of Columbia, for Petitioners South Carolina Department of Corrections and South Carolina Department of Juvenile Justice.
David Allan DeMasters, Riley Pope & Laney, LLC, of Columbia, for Petitioner South Carolina Department of Juvenile Justice.
Andrew Spencer Platte, Earhart Overstreet, of Charleston; Arnold S. Goodstein, Goodstein Law Firm, LLC, of St. George; C. Alan Runyan, of Beaufort; C. Carter Elliott Jr., Andrew William Kunz, Lauren Knight Slocum, Elliott, Phelan, Kunz & Slocum, of Georgetown, all for Respondents.
JUSTICE FEW: The circuit court certified two classes of similarly situated plaintiffs pursuant to
I. Facts and Procedural History
Plaintiffs Calvin Henson, Daniel James Collins, Jason Robinson, and Russell Taylor—each an inmate at SCDC or SCDJJ—filed this lawsuit in their individual capacities and as purported representatives of a class of similarly situated inmates. The named plaintiffs—whom we refer to collectively as Henson—allege prison officials were negligent in failing to implement and enforce appropriate policies and procedures and in failing to provide sufficient prison staff. Henson claims SCDC and SCDJJ‘s adoption of and compliance with these policies and procedures and provision of a sufficient staff of prison guards “would have prevented the sexual assaults” they contend they suffered.
Henson filed a motion to certify a class under
The circuit court found Henson satisfied all elements of
All individuals that have been under the custody and care of the South Carolina Department of Corrections (“SCDC“) in South Carolina from 2012 until present who were victims of a nonconsensual sexual battery.
All individuals that have been under the custody and care of the South Carolina Department of Juvenile Justice (“SCDJJ“) in South Carolina from 2012 until present who were victims of a nonconsensual sexual battery.
SCDC and SCDJJ appealed the class certification order to the court of appeals. The court of appeals dismissed the appeal, finding the order was not immediately appealable. Henson v. S.C. Dep‘t of Corr. & S.C. Dep‘t of Juv. Just., S.C. Ct. App. dated Jan. 3, 2025. SCDC and SCDJJ then filed a petition requesting this Court
II. Immediate Appealability and Common-Law Certiorari
Even though we denied the request for a writ of certiorari to the court of appeals, we emphasize the court of appeals was correct to dismiss the appeal. In previous opinions discussing the immediate appealability of interlocutory class certification orders, we used flexible language indicating class certification orders may be immediately appealable under limited circumstances. See, e.g., Hensley v. S.C. Dep‘t of Soc. Servs., 429 S.C. 144, 148, 838 S.E.2d 510, 512 (2020) (“[C]lass certification orders are ordinarily not immediately appealable.” (emphasis added)); Salmonsen v. CGD, Inc., 377 S.C. 442, 448, 661 S.E.2d 81, 85 (2008) (“The general rule established by this Court is that class certification orders are not immediately appealable.” (emphasis added)); Ferguson v. Charleston Lincoln Mercury, Inc., 349 S.C. 558, 565, 564 S.E.2d 94, 98 (2002) (“Usually, an order denying class certification is interlocutory and not immediately appealable.” (emphasis added)), overruled in part on other grounds by Hughes ex rel. Estate of Hughes v. Bank of Am. Nat‘l Ass‘n, 442 S.C. 113, 139 n.7, 898 S.E.2d 102, 116 n.7 (2024); Eldridge v. City of Greenwood, 308 S.C. 125, 127, 417 S.E.2d 532, 534 (1992) (“Orders under Rule 23, SCRCP are interlocutory and thus, immediately appealable only in certain circumstances.” (emphasis added)). Pursuant to our decision today, however, an interlocutory order granting or denying class certification is never immediately appealable to the court of appeals. There are no exceptions.2
In very rare circumstances, however, this Court has exercised its discretion to use a common-law writ of certiorari to correct a trial court‘s errors of law. Price, 441 S.C. at 433, 435 n.5, 895 S.E.2d at 638, 639 n.5. We have emphasized we will use this authority only where “exceptional circumstances” exist, Laffitte v. Bridgestone Corporation, 381 S.C. 460, 471, 674 S.E.2d 154, 160 (2009), and we “will not . . . use a common-law writ of certiorari as a substitute for a party‘s right of appeal,” Price, 441 S.C. at 434, 895 S.E.2d at 639. Our hesitance to use this authority is demonstrated by the fact we have done so in published opinions only a handful of times over the past hundred years. As we will emphasize again below, we caution litigants dissatisfied with a circuit court‘s ruling on class certification that they should not lightly seek review of that ruling through a common-law writ of certiorari.
III. Rule 23(a)—Class Certification Requirements
Our rules of civil procedure are generally designed “to secure the just, speedy, and inexpensive determination of every action.”
This Court recently discussed this
Today, we do reach the merits of commonality and predominance. Our analysis of these issues requires us to consider the relationship that a class representative must demonstrate to exist between questions that are common to all class members and questions that must be litigated on an individual basis. We begin with a passage we quoted in Hensley, 429 S.C. at 152-53, 838 S.E.2d at 514, written in 1985 by Professor Emeritus James F. Flanagan—the original reporter for our Rules of Civil Procedure—and the late Professor and former Dean Harry M. Lightsey Jr.:
[T]he class action must be a better procedural mechanism for resolving the litigation than named joinder or separate litigation. Under
Fed. R. Civ. P. 23(b)(3) , this is reflected in the requirement that the common questions predominate over individual issues. Although not specifically required by this Rule, it is inherent in the general conditions for class actions. The Court should first determine the existence of common questions, and then whether they are sufficiently central to justify the class action.
This Court discussed the necessary relationship between common and individual questions in Gardner v. South Carolina Department of Revenue, 353 S.C. 1, 577 S.E.2d 190 (2003). We began our discussion in that case by recognizing that “[n]ot every issue in the case must be common to all class members.” 353 S.C. at 21, 577 S.E.2d at 200 (citation omitted). We then acknowledged there were “at least two common questions of law” in the case whose resolution applied equally to all class members. 353 S.C. at 22, 577 S.E.2d at 201. We focused, however, on the legal requirement that individual class members “cannot prevail unless they establish they were prejudiced.” Id. We explained commonality requires that “a determinative critical issue overshadows all other issues.” 353 S.C. at 21-22, 577 S.E.2d at 201 (quoting Stott v. Haworth, 916 F.2d 134, 145 (4th Cir. 1990)). We held the circuit court erred in certifying the classes because—in that particular case—the necessity of having each individual class member prove prejudice “negates the benefits of a class action suit.”4 353 S.C. at 22, 577 S.E.2d at 201.
IV. Analysis of Common and Individual Questions in this Case
With this backdrop in mind, we turn to the three issues presented to the Court by SCDC and SCDJJ. Each of these issues in some fashion invokes the efficiency concerns at the root of the requirements of commonality and predominance. For example, SCDC and SCDJJ argue “the class definitions as adopted by the trial court” are not “proper under South Carolina law” because they do not “allow for the manageability and efficiencies required of a class action.” To address this and the other issues SCDC and SCDJJ raise on appeal and the elements of
First—according to the circuit court‘s certification order—the class includes only inmates who were “victims of a nonconsensual sexual battery“—or in common terms—inmates who were “raped.” This means an individual inmate may not be included in the class unless Henson—as the class representative—first proves the inmate was raped. This is a question of fact as to which SCDC and SCDJJ enjoy the
Second, a jury will have to hear testimony and consider evidence of the actions of SCDC and SCDJJ as to whether they were negligent in failing to prevent the rapes. This is the primary question Henson argues is common to all class members, and thus, he argues, may be resolved at trial with one class-wide finding by a jury. We will discuss this “common question” extensively below.
Third, a jury will have to hear testimony and consider evidence on whether SCDC and SCDJJ‘s allegedly negligent conduct proximately caused each individual rape, as proximate cause is an essential element of every negligence case. See Hurd v. Williamsburg Cnty., 363 S.C. 421, 427, 611 S.E.2d 488, 492 (2005) (“In a negligence action the plaintiff must prove proximate cause.“). Proximate cause “is a question of fact for the jury” and “requires proof of . . . causation-in-fact.” J.T. Baggerly v. CSX Transp., Inc., 370 S.C. 362, 369, 635 S.E.2d 97, 101 (2006). “Causation-in fact is proved by establishing the injury would not have occurred ‘but for’ the defendant‘s negligence . . . .” Id. (quoting Bramlette v. Charter-Med.-Columbia, 302 S.C. 68, 72, 393 S.E.2d 914, 916 (1990)). On this point, it is obvious that even perfect compliance with all applicable standards for prison management under PREA or otherwise is not going to prevent all sexually inappropriate conduct in prisons. Thus, as to each individual class member, Henson must present individualized evidence to satisfy the burden of proving “but for” cause—that is, Henson must prove each inmate would not have been raped but for the wrongful conduct of SCDC or SCDJJ.
Finally, a jury will have to hear testimony and consider evidence as to each individual inmate‘s damages.
As we mentioned above, SCDC and SCDJJ‘s internal records contain 1,768 reports of sexual assaults in the prisons during the applicable time period. The circuit court wrote in its order this number “appears to be the minimum of potential putative class members.” Using this “minimum” number—and recognizing that no inmate may become a member of the class until a factual determination has been made as to whether the inmate was raped—the circuit court must begin the trial of this case as a class action by conducting one or more mini-trials in which a jury makes at least 1,768 separate findings of fact as to whether each individual inmate was raped. As
Importantly, this overwhelming portion of the jury‘s work is only to determine class membership. After class membership is determined, class counsel is required to send notice to each of the class members and provide an opportunity for each member to opt out. See generally Salmonsen, 377 S.C. at 457, 661 S.E.2d at 89 (“[I]n order to provide minimal due process, absent class plaintiffs[] must receive notice plus an opportunity to be heard and participate in the litigation.” (quoting Hosp. Mgmt. Assocs. v. Shell Oil Co., 356 S.C. 644, 654, 591 S.E.2d 611, 616 (2004))); Salmonsen, 377 S.C. at 460, 661 S.E.2d at 91 (stating “we adopt the ‘opt out’ class action and notification procedure as the exclusive method of class action litigation in this state“).
After notice has been provided and the final composition of the class has been determined, another jury trial must take place. In that trial—which almost certainly cannot be conducted with the same jury that determined class membership—a jury must resolve the liability of SCDC or SCDJJ.
Henson argues this is a common question that may be resolved by one finding of negligence on the part of SCDC and SCDJJ. We question whether the trial of this question will be so simple. The certified class includes all inmates who were raped “from 2012 until present.” Compliance with applicable standards for prison management is not a static matter, and can vary over the years. For example, if the applicable standards for the conduct of prison officials change, or if SCDC or SCDJJ‘s degree of compliance with those standards changes, then the answer to the question whether the conduct of SCDC or SCDJJ management constitutes negligence could also change. See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350, 131 S. Ct. 2541, 2551, 180 L. Ed. 2d 374, 390 (2011) (discussing commonality and stating, “What matters to class certification . . . is not the raising of common ‘questions‘—even in droves—but, rather, the capacity of a class-wide proceeding to generate common answers apt to drive the resolution of the litigation. Dissimilarities within the proposed class are what have the potential to impede the
To illustrate this point, we turn to PREA.5 Congress and the DOJ changed the PREA standards several times during the period of time covered by the circuit court‘s class definitions—“from 2012 until present“—each in a manner that could make a significant difference in the likelihood of SCDC or SCDJJ facing civil liability for an individual rape. The first change occurred in 2014 when the DOJ set a May 15, 2014 deadline, requiring states for the first time to provide (1) “assurances” to the DOJ of progress toward PREA compliance, or (2) “certifications” of actual compliance.6 The second change was made in 2016, providing that after 2022 states were no longer permitted to simply assure progress towards PREA compliance but were required to certify existing compliance.7 The third change—also made in 2016—provided a state may maintain federal funding for its prison system by auditing some—but not necessarily all—of its prisons for PREA compliance. This third change permitted states to make an “emergency assurance” from 2022 until 2025 certifying “that the State has audited not less than 90 percent of prisons” for
Consider several potential class members: one raped in 2012 when no reporting of PREA compliance was required, one raped in 2018 when states were permitted to simply assure progress toward PREA compliance, and one raped in 2024 when states were required to certify compliance. Also consider as to the 2024 rape—which occurred at a time when South Carolina made an “emergency assurance” indicating it audited some but not all prisons for PREA compliance—whether the rape occurred in a prison that had been audited for compliance with PREA or occurred in a prison not audited. Finally, consider the type of prison facility in which the rape occurred, because PREA standards vary between the various types. Compare
Each of these scenarios presents significantly different facts on the question of whether prison officials were negligent under South Carolina law, depending on when and where a particular rape occurred. In turn, these different factual scenarios create significant variability in the likelihood of SCDC or SCDJJ facing civil liability for an individual rape. This means it is somewhat—if not highly—likely the answer to the question whether prison officials were negligent in failing to prevent the rape
Next, regardless of whether that second question may be treated as one common to the entire class, the questions of proximate cause and damages clearly require individual findings by a jury. In fact, one or more juries must make at least 1,768 separate determinations of whether Henson proved proximate cause as to each class member, and then consider separate damages calculations for 1,768 class members. As to each of these factual questions, Henson must make an individualized factual presentation, and SCDC or SCDJJ is entitled to make an opening statement, present its own testimony and evidence, and then make a closing argument.
But the 1,768 “minimum” is clearly not the applicable number. It is a central tenet of class action law that class counsel owes a fiduciary duty to the entire class, including absent class members. See Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 812, 105 S. Ct. 2965, 2974, 86 L. Ed. 2d 628, 642 (1985) (“[T]he Due Process Clause of course requires that the named plaintiff at all times adequately represent the interests of the absent class members.“); Premium Inv. Corp. v. Green, 283 S.C. 464, 470, 324 S.E.2d 72, 76 (Ct. App. 1984) (“[A] plaintiff who sues on behalf of a class and the attorney representing the class assume a fiduciary obligation to absent members of the class.“).11 In their memorandum in support of the motion for class certification—apparently believing using a large number would improve their standing in some manner—Henson indicated the class could include as many as 64,000 inmates from SCDC and 2,800 inmates from SCDJJ. Because class counsel owes a fiduciary duty to each of those 66,800 individuals, counsel is not free to pursue only the strongest claims, but must also pursue recovery for potential class members whose claims may be doubtful. Thus, it is difficult to imagine how counsel
V. Commonality and Predominance Under Rule 23(a), SCRCP
SCDC and SCDJJ do not frame their issues in this petition in terms of commonality or predominance. For example, as to one of the issues, they argue Rule 23 should “be interpreted as containing an implicit threshold requirement that the members of a proposed class be readily identifiable,” and, “A class definition must be crafted in such a way that the putative class members are readily . . . ascertainable by objective criteria.” Thus, they argue, this Court should “recognize an ‘ascertainability requirement’ under Rule 23, SCRCP.” They also argue the circuit court erred in certifying the classes because “the class definitions . . . create what are commonly referred to as ‘fail-safe’ classes.”12 As to the issue we referenced in section IV, SCDC and SCDJJ argue:
If the Court allows these fact-intensive and fail-safe class definitions to proceed on remand, the trial court will be required to engage in hundreds of mini-trials . . . just to determine whether particular SCDC inmates and SCDJJ juveniles meet the class definitions. That will render the classes unmanageable . . . and, more importantly, defeat the efficiencies at the heart of the class action process.
In recent years, this Court has refocused the analysis of questions governed by our Rules to the actual language of the Rule. Swing v. Swing, 445 S.C. 340, 346, 914 S.E.2d 158, 161 (2025); see also Whitfield v. Schimpf, 444 S.C. 633, 656 n.7, 911 S.E.2d 310, 322 n.7 (2025) (stating, “This Court has recently emphasized that trial courts should apply the language of the Rules,” and collecting cases). That focus is no less important under
With the goal of the efficiency of the class action in mind, therefore, we turn back to the language of the Rule and the “commonality” requirement—set forth in
These statements of our commentators and courts as to what is required before certifying a class action are consistent with the Supreme Court of the United State‘s treatment of commonality in Dukes. Contrary to earlier statements in the federal courts that commonality requires only that some question be common—regardless of the importance of the issue to the outcome of the litigation13—the Dukes Court
We turn next to the concept of “predominance“—not specifically set forth in our Rule. We often hear that South Carolina does not have what the federal courts call the “predominance” requirement. We noted in Hensley, for example, the circuit court in that case stated, “South Carolina has no predominance . . . requirement.” 429 S.C. at 151-52, 838 S.E.2d at 514. This idea stems from the fact the drafters of our
The reasons for this omission are not entirely clear. See generally Lightsey & Flanagan, supra at 191-95 (discussing the omission). It is clear, however, the omission was not intended to expand the scope of class actions. “Several factors argue against an expansive class action rule.” Lightsey & Flanagan, supra at 193; see also 1 James F. Flanagan et al., SOUTH CAROLINA CIVIL PROCEDURE 257 (4th ed. 2020) (“The history of the class action in this jurisdiction reflects its equitable origins and the joinder considerations found in the [Field Code]; both combined to limit its application as a procedural device.” (citing A. Camden Lewis and Michael G. Sullivan, LEWIS AND SULLIVAN ON CLASS ACTIONS (S.C. Bar 2005))). Lightsey and Flanagan suggested in 1985 that the omission of the
commonality analysis. M.D. ex rel. Stukenberg v. Perry, 675 F.3d 832, 839-42 (5th Cir. 2012).
Thus, the same statements of our commentators and courts as to what is required before certifying a class action also include the substance of the federal “predominance” requirement. In Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 136 S. Ct. 1036, 194 L. Ed. 2d 124 (2016), the Supreme Court stated, “The ‘predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.‘” 577 U.S. at 453, 136 S. Ct. at 1045, 194 L. Ed. 2d at 134 (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623, 117 S. Ct. 2231, 2249, 138 L. Ed. 2d 689, 712 (1997)); see also Tyson Foods, 577 U.S. at 453, 136 S. Ct. at 1045, 194 L. Ed. 2d at 134 (“The predominance inquiry ‘asks whether the common, aggregation-enabling, issues in the case are more prevalent or important than the non-common, aggregation-defeating, individual issues.‘” (quoting 2 W. Rubenstein, NEWBERG ON CLASS ACTIONS § 4:50 (5th ed. 2012))). These statements from the Supreme Court are substantively indistinguishable from our statements in Gardner that the class plaintiff “must articulate the existence of significant common, legal, or factual issues which bind the proposed class together,” and requiring “a determinative issue.” 353 S.C. at 21, 577 S.E.2d at 200-01 (internal quotation marks omitted).
As we seek to read and apply
Thus, whatever language is used to describe the principle of “commonality,” and however we attempt to understand the omission of the word “predominate” from
In section IV of this opinion, we engaged in a careful analysis of how this case would actually be tried as a class action. This is the “rigorous analysis” the Supreme Court required in Tyson Foods and Dukes and which we required in Gardner and other cases. See Tyson Foods, 577 U.S. at 453, 136 S. Ct. at 1045, 194 L. Ed. 2d at 134 (stating predominance “calls upon courts to give careful scrutiny to the relation between common and individual questions in a case“); Dukes, 564 U.S. at 350-51, 131 S. Ct. at 2551-52, 180 L. Ed. 2d at 390 (stating commonality requires “a rigorous analysis“); Waller v. Seabrook Island Prop. Owners Ass‘n, 300 S.C. 465, 467, 388 S.E.2d 799, 801 (1990) (“It is imperative the court apply a rigorous analysis to assure the prerequisites of Rule 23(a) have been satisfied.“); Gardner, 353 S.C. at 21, 577 S.E.2d at 200 (“[T]he court must apply a rigorous analysis to determine each prerequisite is satisfied.” (citing Waller)). Our analysis of a potential class-action
VI. Conclusion
We reiterate that interlocutory class certification orders are never immediately appealable to the court of appeals. We emphasize that this Court will accept a petition for a common-law writ of certiorari on an interlocutory class-certification order only in rare and exceptional circumstances. As we explained here, this case is one of those very rare cases that meets the standard for our immediate review. On the merits, we reverse the circuit court‘s order certifying the classes and remand the case to the circuit court for discovery and trial only in the individual claims of the four named plaintiffs.
REVERSED AND REMANDED.
KITTREDGE, C.J., JAMES, HILL and VERDIN, JJ., concur.