Ronald O. Nelsen Michael Bullene v. King County

895 F.2d 1248 15 Fed.R.Serv.3d 1322 Ronald O. NELSEN; Michael Bullene, Plaintiffs-Appellants, v. KING COUNTY, Defendant-Appellee. No. 87-4411. United States Court of Appeals, Ninth Circuit. Argued and Submitted Oct. 3, 1989. Decided Feb. 9, 1990. Roger M. Leed, Seattle, Wash., for plaintiffs-appellants. Norm K. Maleng, King County Pros. Atty. by James L. Brewer, Sr. Deputy Pros. Atty., and Mary F. Perry, Deputy Pros. Atty., Seattle, Wash., for defendant-appellee. Appeal from the United States District Court for the Western District of Washington. Before WALLACE, PREGERSON and ALARCON, Circuit Judges. WALLACE, Circuit Judge: 1 Nelsen and Bullene, former residents of the Cedar Hills Alcoholic Treatment Center (Center), appeal from the district court's refusal of class certification and denial of injunctive relief. The district court held that Nelsen and Bullene did not possess standing to seek injunctive relief individually or on behalf of a class. The district court had jurisdiction pursuant to 42 U.S.C. Sec. 1983 . We have jurisdiction over this timely appeal pursuant to 28 U.S.C. Sec. 1292 (a)(1). We affirm. 2 * Following the commission of alcohol-related offenses, Nelsen and…

Nelsen and Bullene, former residents of the Cedar Hills Alcoholic Treatment Center (Center), appeal from the district court’s refusal of class certification and denial of injunctive relief. The district court held that Nelsen and Bullene did not possess standing to seek injunctive relief individually or on behalf of a class. The district court had jurisdiction pursuant to 42 U.S.C. § 1983 . We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1292 (a)(1). We affirm.

I

Following the commission of alcohol-related offenses, Nelsen and Bullene chose, in lieu of prison, to undergo treatment in the Center, which is owned and operated by King County. Nelsen resided in the Center from April 2 to May 30, 1985. Bullene resided in the Center from September 26 to November 24, 1986.

On August 25, 1986, Nelsen and Sharp, another former resident of the Center (who is not involved in this appeal), filed suit in the district court under 42 U.S.C. § 1983 , seeking injunctive relief and damages for alleged violations of their constitutional rights during their stays in the Center. The substance of their complaint focused on the allegedly unsanitary conditions created by a landfill…

dissenting:

I do not disagree with the majority’s analysis of the law. I do disagree, however, with its application to the facts of this case. Appellants are indigent, confirmed alcoholics. The probabilities are strong that they will stay in King County, that they will again indulge in alcohol, that they will be arrested, and that they will return to the Cedar Hills Treatment Center.

The plaintiffs cite unchallenged statistics that they have a 35% to 75% chance of returning to the drug treatment facility. The majority argues that a standing determination may not be made on the basis of such “naked statistical assertions.” True, we have in this circuit expressed a preference “to describe ‘probability’ qualitatively, as requiring a very significant possibility, and not quantitatively, as mandating a ‘greater than fifty percent’ likelihood.” Sample v. Johnson, 771 F.2d 1335, 1343 (9th Cir.1985). Such a preference does not, however, obviate all use of statistical information. Statistical information goes far in supporting qualitative determinations of probability, particularly in cases such as these.

Given the social and medical conditions of the appellants lives, conditions…