Victor Antonio Parsons v. Charles L. Ryan; Richard Pratt

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VICTOR ANTONIO PARSONS; SHAWN
JENSEN; STEVE SWARTZ; DUSTIN
BRISLAN; SONIA RODRIGUEZ;
CHRISTINA VERDUZCO; JACKIE
THOMAS; JEREMY SMITH; ROBERT
CARRASCO GAMEZ, JR.; MARYANNE
CHISHOLM; DESIREE LICCI; JOSEPH
HEFNER; JOSHUA POLSON;
CHARLOTTE WELLS; ARIZONA
CENTER FOR DISABILITY LAW,
Plaintiffs-Appellees,
v.
CHARLES L. RYAN; RICHARD PRATT,
Defendants-Appellants.
No. 13-16396
D.C. No.
2:12-cv-00601-
NVW
ORDER
Filed April 21, 2015
Before: Stephen Reinhardt, John T. Noonan,
and Paul J. Watford, Circuit Judges.
Order;
Dissent by Judge Ikuta

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PARSONS V. RYAN 2
SUMMARY*
Prisoner Civil Rights
The panel denied a denied a petition for rehearing en banc
on behalf of the court, and ordered the mandate to issue
forthwith.
In the opinion, filed on June 5, 2014, the panel affirmed
the district court’s order certifying a class and a subclass of
inmates in Arizona’s prison system who alleged that they
were subjected to systemic Eighth Amendment violations.
Dissenting from the denial of rehearing en banc, Judge
Ikuta, joined by Judges Kozinski, O’Scannlain, Callahan, Bea
and M. Smith, stated that the panel certified 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. Judge Ikuta stated that the panel’s
broad and general formulation of the prisoners’ claim is based
on a misreading of Rule 23 of the Federal Rules of Civil
Procedure and the Supreme Court’s Eighth Amendment
jurisprudence, and also conflicts with the Third Circuit.
* This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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PARSONS V. RYAN 3
ORDER
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banc; the petition was subsequently withdrawn.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.
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

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PARSONS V. RYAN 4
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 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’
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).

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PARSONS V. RYAN 5
medical facilities, that exposure alone does not give rise to an
Eighth Amendment claim. See Estelle, 429 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 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,

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PARSONS V. RYAN 6
“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
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.

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PARSONS V. RYAN 7
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 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
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 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.

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PARSONS V. RYAN 8
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’ 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

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PARSONS V. RYAN 9
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 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, plaintiffs’ underlying claim and
theory of commonality is that the ADC’s defective healthcare
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.

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PARSONS V. RYAN 10
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 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

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PARSONS V. RYAN 11
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 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

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PARSONS V. RYAN 12
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.
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’

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PARSONS V. RYAN 13
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 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 “could easily fall ill, be injured,

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PARSONS V. RYAN 14
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 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

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PARSONS V. RYAN 15
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 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

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PARSONS V. RYAN 16
(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 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

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PARSONS V. RYAN 17
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 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

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PARSONS V. RYAN 18
violation. 131 S. Ct. at 2551. 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 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

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PARSONS V. RYAN 19
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 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

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PARSONS V. RYAN 20
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
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

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PARSONS V. RYAN 21
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 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 our circuit.

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I dissent from the circuit’s unfortunate acquiescence to an
opinion that is directly contrary to Supreme Court precedent.

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