MEMORANDUM AND ORDJER
This mаtter is before the Court on the Magistrate Judge’s Report and Recommendation (filing 60). No objections to such report and recommendation have been filed as allowed by 28 U.S.C. § 636(b)(1)(C) and NELR 72.4.
I have conducted, pursuant to 28 U.S.C. § 636(b)(1) and NELR 72.4, a de novo review of the report and recommendation. Inasmuch as Judge Piester has fully, carefully and correctly found the facts and applied the law, I need only state that the Report and
IT IS ORDERED.
1. the Magistrate Judge’s Report and Recommendation (filing 60) is adopted;
2. Plaintiffs’ motion for class certification is denied with respect to those women patients who are no longer patients at the Hastings Regional Center and were not sexually assaulted or raped as their claims are moot;
3. Plaintiffs motion for class certification is denied with respect to the claim that defendants have adopted a practice of restricting the privileges of those women patients who report that they have been assaulted or raped; and
4. Plaintiffs motion for class certification is granted with respect to the following class as to all other claims raised in the complaint:
All women-who have been sexually assaulted or raped by male patients at the Hastings Regional Center, and all women who are or in the future will be patients at the Hastings Regional Center.
REPORT AND RECOMMENDATION
PIESTER, United States Magistrate Judge.
Before me for consideration is plaintiffs’ motion for class certification.
Plaintiffs seek to certify the following class: “all women who are currently patients at the Hastings Regional Center (HRC), and all those women who were in the custody of the Defendants at the HRC, during all material times, or in the future.” (Filing 1 at 8; Plaintiffs Memorandum Brief In Support of Motion For Class Certification at Part I) (hereinafter “Plaintiffs Brief.”) The proposed class includes the following subclasses: (1) all women patients who have been sexually assaulted by male patients at HRC (approximately 50 women); and (2) all women who are currently patients at HRC or were patients at HRC at the time of the assaults (approximately 1,037 women). (See generally Plaintiffs brief.) For the reasons set forth more fully below, I shall recommend thаt plaintiffs’ motion for certification of the proposed class be granted in part and be denied in part.
BACKGROUND
According to the allegations of the complaint, the named plaintiffs, Caroline C., Donna W., Debra W., and Billie V., are patients in Wards 35 and 36 of the Hastings Regional Center. Each has a history of mental illness, and each has been attacked and raped by one of three male patients at HRC, who are referred to in the complaint as “R,” “J,” and “F.” Plaintiffs contend that approximately fifty other women patients at HRC have been raped or sexually assaulted by male patients over the past four years, but the defendants, who are officials and psychiatrists at HRC, have failed to take adequate measures to prevent such assaults and have failed to take adequate measures to treat the
Plaintiff Donna W.
On January 27, 1993 male patients “J,” “R,” and “F” sexually assaulted Plaintiff Donna W. at the Hastings Regional Center. (Filing 1 at 11.) Later, on June 10, 1993, “J” and “R” kicked, raped, and beat Donna W. (Filing 1 at 11.) Two other patients witnessed the June 10th incident and reported it to the defendants. (Filing 1 at 11.) Donna W. required medical treatment at Mary Lanning Hospital in Hastings, Nebraska for bruises to her chest, right shoulder, and left cheek. (Filing 1 at 11.) Plaintiffs contend that the defendant officials had actual knowledge that the same male patients had previously assaulted several other women patients, but the defendants failed to take adequate measures to prevent future assaults. In addition, they allege that the failure to do so constituted a custom, policy, or practice of the defendants.
Plaintiff Debra W.
According to the complaint, Plaintiff Debra W. was sexually assaulted by male patient “R” on July 7, 1991 and again in September of 1992. (Filing 1 at 12.)
Carolina C.
Plaintiffs allege that patient “J” sexually assaulted Plaintiff Caroline C. on November 1,1992. (Filing 1 at 14.) Caroline C. reported the assault to HRC staff; however, the staff concluded that the sex was consensual and thus did not report the incident to law enforcement or to Caroline’s legal guardian. (Filing 1 at 14.) Thereafter, “R” sexually assaulted Caroline C. in April of 1993. Plaintiffs allege that defendants were aware of prior actions of “J” and “R,” yet failed to take corrective actions pursuant to the established custom, practice, or policy of the institution.
Billie V.
According to the allegations of the com- • plaint, on July 7, 1994 Plaintiff Billie Y. was raped next to a cemetery located near HRC, by male patient “J,” who had previously assaulted Debra W. on July 7, 1991 and September 1992, patient Linda W. on September 26, 1992, Caroline C. on November 1, 1992, patient Brenda G. on May 22, 1993, and Donna W. on June 10,1993. (Filing 1 at 15.) Plaintiffs contend that the defendants were aware of prior actions of “J,” yet failed to take corrective actions. (Filing 1 at 16.) In addition, on July 7, 1994 Billie V. reported the rape to HRC staff, but the defendants did not immediately investigate the incident. (Filing 1 at 16.) Instead, on July 12, 1994 Billie V was placed on ward restriction and prohibited from attending activities, treatment groups, and group programs. (Filing 1 at 16.) Patient “J,” however; was not placed
Class-Based Claims for Relief
During the time of the alleged assaults 1,037 women have been patients at HRC. Of those women approximately fifty have been subjected to rape, sexual assault, and physical assault while patients at the Hastings Regional Center. (Depo. of Frederick Echternacht at 15, 66; Defendant’s Answer to Plaintiffs’ First Set of Interrogatories at # 7.) Plaintiffs contend that “women with mental illnesses and psychiatric disabilities are particularly vulnerable to sexual assault, victimization, and sexual exploitation at custodial institutions!,]” and the defendants have a duty to protect them from rape and sexual victimization. (Filing 1 at 17-19.)
Plaintiffs maintain that the policies and practices of the defendant officials have increased the risk of sexual assaults, and the defendants’ actions following the assaults aggravated thе harm suffered by the victims. (Filing 1 at 20-32.) They assert the following causes of action in their complaint: (1) failure to protect plaintiffs from harm in violation of the First, Fourth, Fifth, Ninth, and Fourteenth Amendments to the U.S. Constitution; (2) denial of plaintiffs’ right to treatment in violation of the First, Fourth, Fifth, Ninth, and Fourteenth Amendments to the U.S. Constitution; (3) violation of the Americans with Disabilities Act; (4) violation of the Rehabilitation Act; (5) violation of equal protection; and (6) violation of Nebraska state law. (Filing 1 at 17-32.)
In particular, plaintiffs allege that since 1991 the defendants allowed known rapists and sexually-aggressive males to have unmonitored contact with women patients and failed to take reasonable steps to protect them, such as placing sexually-aggressive patients on ward and grounds restriction, placing sexually-aggressive patients in a more secure facility, and enacting screening procedures to ascertain sexually-aggressive patients before an assault had been perpetrated. (Filing 1 at 20-21.) Plaintiffs also allege that the defendants have failed to train their employees to report and investigate complaints of sexual assault, failed to screen patients for prior sexual victimization and vulnerability to future victimization, failed to implement appropriate “psychosocial sex education courses or assertiveness training to ... class members!,]” and “failed to provide appropriate psychiatric and psychological counseling and therapy to treat the trauma and harm to Plaintiffs and class members!.]” (Filing 1 at 21-24.) Plaintiffs also contend that the defendants developed a policy .of “trading” sexually-aggressive patients among the three state mental-health institutions and “adopted a policy, practice!,] or custom of restricting privileges to those Plaintiffs and class members who notified Defendants and their employees and agents of the rapes and sexual assaults by male рatients.” (Filing 1 at 21-22.) They request declaratory and in-junctive relief on a class-wide basis.
CLASS CERTIFICATION
Plaintiffs seek class certification under Federal Rule of Civil Procedure 23 of the following class: “all women who are currently patients at the Hastings Regional Center (HRC), and all those women who were in the custody of the Defendants at the HRC, during all material times, or in the future.” (Filing 1 at 8; plaintiffs’ Brief at 1.) The proposed class is said to include the following subclasses: (1) all women patients who have been sexually assaulted by male patients at HRC; and (2) all women who are currently patients at HRC or were patients at HRC at the time of the assaults. (See filing 1 at 8; see generally Plaintiffs’ Brief.) Plaintiffs Caroline C., Donna W., Debra W., and Billie V. are the proposed representatives of the class. (See filing i at 8.)
Rule 23(a) permits class certification where (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.
Fed.R.Civ.P. 23(a); Alpern v. Utilicorp United, Inc.,
The party seeking certification of the class bears the burden of proving that the requirements for certification have been met. Bishop v. Committee on Prof. Ethics,
1. Definition of the Class
“Although not specifically mentioned in the rule, the definition of the class is an essential prerequisite to maintaining a class action.” Roman v. ESB, Inc.,
a. Arguments Raised By the Parties
In this ease defendants argue that plaintiffs’ proposed class, “all women who are currently patients at the Hastings Regional Center (HRC), and all those women who
Defendants admit, although somewhat equivocally, that the subclass of fifty women who have actually been assaulted by male patients at HRC is reasonably definite.
In Adashunas, the Seventh Circuit affirmed the denial of certification of a class composed of all learning-disabled children in the state of Indiana. The court found identifying learning-disabled children to be “a gargantuan task,” because it often requires two or three years of testing to determine if a single child is learning disabled. Id. at 603-04. Consequently, the court held the class was “so highly diverse and so difficult to identify that it [was] not adequately defined or nearly ascertainable.” Id. at 604. In addition, the court noted that “since the proposed class [was] so amorphous and diverse, it [could] not be reasonably clear that the proposed class members ha[d] all suffered a constitutional or statutory violation warranting some relief.” Id.
Defendants contend that a class composed of those women who are currently patients at HRC, as well as those women who were patients at HRC at the time of the assaults and those women who will be patients at HRC in the future, cannot be maintained because plaintiffs “have not demonstrated how those persons have suffered a constitutional or statutory violation inflicted by the Defendants.” (Defendant’s Brief at 4.) This contention, as argued, is without merit for four principal reasons.
First, the statement of the court in Adash-unas that “it [could] not be reasonably clear that the propоsed class members ha[d] all suffered a constitutional or statutory violation warranting some relief[ ]” was premised on its finding that defining a class of learning-disabled children is virtually impossible. Id at 603-04. The task of defining whether one particular child is learning-disabled is itself “gargantuan”; the task of determining whether the defendants in that ease failed to comply with constitutional or statutory provisions such as the Education for All Handicapped Children Act, 20 U.S.C. § 1413, would have been even more troublesome for an entire class of children who were allegedly learning disabled. Adashunas,
Second, unlike Adashunas, in this action there is little difficulty in determining whether a person is a member of the class at issue. Residential treаtment at HRC provides a definite boundary between those women who are members of the putative class and those who are not.
Third, despite the defendants’ statements to the contrary, a litigant need not
Fourth, numerous courts have certified classes composed, in part, of persons who will be subject to a policy or practice that may in the future subject them to harm. See, e.g., Ahrens v. Thomas,
Finally, defendants argue that the proposed class of those women who are now or will in the future be patients at HRC should not be certified because “any relief that this court could potentially grant as to one of the 50 persons [who have already been raped or sexually assaulted] would be good as to [the broader class.] The relief requested by virtue of the complaint is systemic: in nature, [sic] therefore, it follows that any change will affect all persons at HRC who either now reside or who are potential patients at HRC.” (Defendants’ Brief at 4.) Defendants’ argument has already been rejected, however, by the drafters of the Federal Rules of Civil Procedure. Rule 23 was enacted so persons who might as a practical matter be bound by a judgment in an individual action would have representation, and the rule permits issues affecting a substantial number of litigants to be resolved in a single action, thereby promoting efficient resolution of disputes and avoiding conflicting judgments. See 1966 Committee Note to Rule 23(b)(1). Thus, defendants’ argument that the putative class should not be certified because of the systemic nature of the relief requested is not well taken.
b. _ Mootness
The class proposed by the plaintiffs for certification consists of “all women who
“[F]ederal courts are without power to decide questions that cannot affect the rights of litigants in the case before them.” North Carolina v. Rice,
2. Requirements of Rule 23(a)
a. Numerosity
Rule 23(a) first requires the party seeking certification to demonstrate that the proposed class is “so numerous that joinder of all members is impracticable.” Paxton v. Union Nat’l Bank,
Certainly, where the class is very large— for example numbering in the hundreds— joinder will be impracticable---- In light оr prevailing precedent, the difficulty inherent in joining as few as 40 class members should raise a presumption that join-der is impracticable, and the plaintiff whose class is that large or larger should meet the test of Rule 23(a)(1) on that fact alone.
Newberg, Class Actions § 3.05, at 3-25; see also Robidoux,
In this case the class, as redefined by the court, consists of all women who have been sexually assaulted or raped by male patients at the Hastings Regional center, and all women who are or in the future will be patients at the Hastings Regional Center. The class also includes the following subclasses: (1) all women patients who have been sexually assaulted or raped by male patients at HRC (approximately 50); and (2) all women who are or will be patients at HRC (an indeterminable number). (See filing 1, at 8; see generally Plaintiffs’ Brief.)
It is clear the numerosity requirement has been satisfied with respect to the second subclass. “Since there is no way now of determining how many of these future plaintiffs there may be, their joinder is impracticable.” Ellis v. Naval Air Rework Facility,
Also with respect to the subclass of fifty women who have been assaulted by male patients at HRC, I conclude that the numerosity requirement has been met. As noted above, courts generally conclude that joinder is impractical when the class exceeds forty members. Robidoux,
In this case the particular circumstances of the members of the subclass, coupled with the size of the subclass, almost necessitate certification. The women who compose the subclass have all experienced mental and psychological problems to such a degree that residential treatment in an institutional setting has been necessary. (Filing 1 at 1-5, 8-10; Defendant’s Brief at 6.) Potential lack of knowledge and sophistication of the class members place them in a poor position to seek legal redress individually. See Gordon v. Forsyth County Hospital Authority, Inc.,
b. Commonality
The federal rules require the existence of common questions of law or fact among the members of the class. Paxton,
Common questions оf law and fact clearly exist in this case. Plaintiffs allege that the policies and practices of the defendant officials, enumerated at length above, increase the risk of sexual assaults at HRC and violate the Americans with Disabilities Act, the Rehabilitation Act, and several provisions of the U.S. Constitution, by failing to protect members of the class from harm and denying them adequate treatment. (Filing 1 at 17-32.) As all members of the class, as redefined by the court, are or will be subject to the defendants’ policies and practices while they are patients at HRC, it is quite clear that “the course of conduct giving rise to a cause of action affects all class members.” Lockwood,
Defendants do point to minor factual issues that may vary somewhat among class members, such as admission status of class members upon entering HRC. (See Defendants’ Brief at 17.) However, the Rule 23(a)(2) commonality standard is qualitative, not quantitative. Newberg, Class Actions § 3.10, at 3-50 (citing cases). “The rule does not require that every question of law or fact be common to every member of the class____” Paxton,
c. Typicality
A class representative “must be part of the class and ‘possess the same interеst and suffer the same injury’ as the class members.” General Telephone Co. of Southwest v. Falcon,
In this ease the named plaintiffs’ allegations that the policies and practices of the defendants have increased the risk of rapes and assaults by sexual perpetrators are typical of those of the other class members. The alleged failures of the defendants to monitor known rapists, adequately train employees, and install screening procedures to ascertain sexually-aggressive patients when they arе admitted to the facility, (see filing 1 at 20-21), involve the same general course of conduct that allegedly affects both the named plaintiffs and other members of the class. The alleged failure of the defendants to enact reasonable policies and practices raises a similar risk of harm for named plaintiffs and absent class members.
The same cannot be said, however, for the claim relating to defendants’ treatment of Billy V. after she had been assaulted. It is alleged that after Billie V. reported thе rape to HRC staff, the defendants failed to report or investigate the claim; instead, they placed her on ward restriction and prohibited her from attending activities, treatment groups, and group programs. However, the alleged rapist, Patient “J,” was not placed on ward restriction and was allowed to attend all activities. (Filing 1 at 16.) Consequently, plaintiffs assert that the defendants have “adopted a policy, praetice[,] or custom of restricting privileges to those Plaintiffs and class members who notified Defendants and their employees and agents of the rapes and sexual assaults by male patients[,]” thereby violating state and federal law. (Filing 1 at 21-22.) Plaintiffs, however, offer no evidence that any other named plaintiff or any other member of the proposed class was subject to such restrictions after reporting an assault.
In order to satisfy Rule 23(a)(3), the moving party must identify other persons who have been subject to the same treаt-
d. Adequate Representation
Rule 23 (a)(4) requires that the class representatives “fairly and adequately protect the interests of the class.” Fed. R.Civ.P. 23(a)(4). Plaintiffs must establish that “(1) the representatives and their attorneys are able and willing to prosecute the action competently and vigorously, and (2) each representative’s interests are sufficiently similar to those of the class such that it is unlikely that their goals and viewpoints will diverge.” Lockwood,
Defendants do not contest that plaintiffs’ attorneys are capable of vigorously and competently representing the class. (Defendants’ Brief at 21.) While defendants speculate that the interests of the class might conflict at some point in the litigation, they offer no evidence, other than speculation, of such a conflict.
3. Rule 23(b)
In addition to satisfying the requirements of Rule 23(a), plaintiffs must also satisfy one of the following prerequisites for class certification contained in Rule 23(b).
(1) the prosecution of separate actions by or against individual members of the class would create a risk of
(A) inconsistеnt or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or
(B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair of impede their ability to protect their interests; or
(2) 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; or
(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods of fair and efficient аdjudication of the controversy.
a. Rule 23(b)(2)
The class in this ease, as redefined by the court, clearly falls within the parameters of the injunctive provision of Rule 23(b)(2). As the Third Circuit has noted, Rule 23(b)(2) “is almost automatically satisfied in actions primarily seeking injunctive relief.” Baby Neal,
b. Rule 23(b)(1)
Finally, I conclude that plaintiffs satisfy the requirements of Rule 23(b)(1)(B), but not Rule 23(b)(1)(A). Rule 23(b)(1)(B) allows for certification where “adjudications with respect to individual members of the class would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair of impede their ability to protect their interest.” Fed. R.Civ. P. 23(b)(1)(B). An adjudication on the merits of the claims of the named plaintiffs in this ease would, as a рractical matter, be dispositive of the interests of the other members of the class. Any change in the policy or practices of the defendants at HRC would affect absent members of the class, because they are or will be subject to those policies or practices. Although actions involving injunctive and declaratory relief that affect the interests of an entire class are most often brought under Rule 23(b)(2), they may also be brought under Rule 23(b)(1)(B). 7A Charles Alan Wright, Arthur R. Miller, and Mary Kay Kane, Federal Practice and Procedure § 1774, at 446 (citing cases). As such, I also conclude that the certification is appropriate under Rule (b)(1)(B).
CONCLUSION
In summary, I conclude that the class should be redefined as follows: All women who have been sexually assaulted or raped by male patients at the Hastings Regional center, and all women who are or in the futurе will be patients at the Hastings Regional Center. See Nix v. Fulton Lodge No. 2 of the Int’l Ass’n of Machinists & Aerospace Workers,
Therefore, in accordance with the foregoing,
IT HEREBY IS RECOMMENDED to the Honorable Richard G. Kopf, United States District Judge, pursuant to 28 U.S.C, § 636(b)(1)(B), that plaintiffs’ motion for class certification be granted in part and denied in part. It is recommended that plaintiffs’ motion for certification be denied with respect to those women patients who are no longer patients at the Hastings Regional Center and were not sexually assaulted or raped, because their claims are moot. Further, it is recommended that plaintiffs’ motion to certify the claim that defendants have -adopted a practice of restricting the privileges of those women patients who report that they have been assaulted or raped be denied, because plaintiffs fail to establish that claim is typical. Finally, it is recommended that the following class be certified with respect to all other claims raised in the complaint: All women who have been sexually assaulted or raped by male patients at the Hastings Regional Center, and all women who are or in the future will be patients at the Hastings Regional Center.
The parties are notified that unless objection is made within ten days after being served with a copy of this recommendatiоn, they may be held to have waived any right
Dated September 4,1996.
Notes
. This matter was referred to me by United States District Judge Richard G. Kopf “for an order or report and recommendation as may be appropriate.” (Filing 44.) The federal statute that establishes the authority of federal magistrate judges, 28 U.S.C. § 636, treats motions "to dismiss or permit maintenance of a class action" as "dispositive” motions requiring the consideration of the, trial judge. 28 U.S.C. § 636(b)(1)(A). Consequently, I shall recommend, rather than order, certification in this case, as set forth below. See 28 U.S.C. § 636(b)(1)(B).
. Plaintiffs seek only declaratory and injunctive relief. (Filing 1 at 2 and 32-38.)
. “J,” "R,” and “F" had also assaulted Plaintiff Debra W. on July 7, 1991 and December 6, 1992; patient Linda W. on September 26, 1992; Plaintiff Caroline C. on November 1, 1992 and April 1993; and patient Brenda G. on May 22, 1993. (Filing 1 at 11-12.)
. "R” later sexually assaulted patient Linda W. on September 26, 1992; Plaintiff Caroline C. on April 1993; and Plaintiff Donna W. on June 10, 1993. (Filing 1 at 12.)
. “J” and "R" perpetrated assaults against Debra W. on July 7, 1991 and September 1992; Linda W. on September 26, 1992; Brenda G. on May 22, 1993; and Donna W. on June 10, 1993. (Filing 1 at 14.)
. Any type of civil claim, federal or state, may be maintained as a class action in federal court, and Rule 23 should be liberally construed and applied. 3B Moore’s Federal Practice ¶ 23.02[4], at 23-70 and 71 (citing Eisen v. Carlisle & Jacquelin,
. The court may not consider the factual merits or weaknesses of plaintiffs' underlying claims. Eisen v. Carlisle & Jacquelin,
As a final note, defendants' contention that the class should not be certified beсause some aspects of plaintiffs’ claims are moot is not supported by the case they cite, Giles v. City of Prattville,
. Although defendants suggest that plaintiffs have "fail[ed] to show how the alleged assaults occurred as a result of or the lack thereof of policies and procedures of HRC[,]” (Defendants’ Brief at 4), this suggestion is belied by the allegations of the complaint, which must be taken as true for purposes of the motion for certification. Eisen v. Carlisle & Jacquelin,
. "The fact that the classes may include persons who are not identifiable at the present, or that class membership may change by the end of trial, is no impediment to the certification of these, classes.” Johnson v. Brelje,
. It is obvious from plaintiffs' complaint that the claims of these plaintiffs are moot, because they did not suffer and will not suffer injury as a result of defendants' policies (unless they are readmitted to HRC at which point they will become part of the class). This type of ‘‘mootness” must be distinguished from the type of "mootness” raised in defendants’ brief, which asserts that some policies at HRC have already been changed. Not only are defendants’ references to and documentation of those changes vague, but the matter is more appropriate for summary judgment where the issue can be fully briefed and proper evidence submitted.
. A district court has broad discretion to define a class of plaintiffs under Fed.R.Civ.P. 23. Gilmore v. Kansas City Terminal Railway Co.,
. "[A]ll four requirements of Rule 23(a) must be met with respect to each subclass.... ” Roby v. St. Louis Southwestern Ry. Co.,
. Defendants argue that the numerosity requirement has not been met because the fifty women who have been raped or assaulted are from the same geographic area and thus may easily be joined as plaintiffs. See Andrews v. Bechtel Power Corp.,
. Defendants’ contention that the harm suffered by the plaintiffs is different in each case is specious. They argue that the plaintiffs, upon being raped or assaulted, will each have suffered a different harm, and they cite Jeannides v. U.S. Home,
. The fact that each of the four named plaintiffs was raped or assaulted by the same male patients at HRC has no bearing on the issue of certification. First, fifty assaults were perpetrated, apparently by several male patients at HRC, over a period of time. (See Defendants’ Response to Request for Documents referred to as Attachment 12; Depo. of Frederick Echternacht and attachments referred to as Attachment 11.) Second, the defendants’ institutional policies and practices are at issue, not just their actions regarding patients “R,” "J," and "F.”
. In fact, defendants' example of a potential сonflict is as follows: "if a potential class member has a similar situation [to, that of Billie V.] where ward restriction is also necessary but HRC fails to restrict that patient, and another incident occurs to that patient, the class could potentially conflict with each other....” (Defendants’ Brief at 21.) However, as I shall recommend the ward-restriction claim of Billie V. not be certified, defendants' argument is without force.
. The three categories are not mutually exclusive and, in fact, overlap. 3B Moore's Federal Practice 1123.02-1, at 23-75.
. Two things are important to note. First, notice to the plaintiff class is not required under Rule 23(b)(2) or 23(b)(1)(B), Sperry Rand Corp. v. Larson,