by David M. Reutter

The South Carolina Supreme Court granted a writ of certiorari on July 22, 2026, which reversed class action status alleging prison officials were negligent in the rape of adult and juvenile prisoners. The Court found that the action failed to satisfy the commonality test, for there were questions of fact that were not predominate across the classes.

Plaintiffs Calvin Henson, David James Collins, James Robinson and Russell Taylor (collectively Henson) were prisoners of either the South Carolina Department of Corrections (DOC) or the South Carolina Department of Juvenile Justice (SCDJJ). Henson alleged that prison officials were negligent in failing to implement and enforce policies and procedures and in failing to provide sufficient staff. It was alleged that had proper policies and procedures been in place and enforced and a provision of sufficient guards “would have prevented the sexual assaults” the Plaintiffs suffered.

Henson moved for class action status under Rule 23(a) of the South Carolina Rules of Civil Procedure. The Dorchester County Circuit Court granted the motion, certifying two classes. The classes differed only as to whether the prisoners were in DOC or SCDJJ custody. In either instance, the class included all prisoners “from 2012 to present who were victims of a nonconsensual sexual battery.”

The DOC and SCDJJ appealed, but their appeal was dismissed as the order was not immediately appealable. The DOC and SCDJJ filed a petition for writ of certiorari in the South Carolina Supreme Court, which granted a common-law writ of certiorari directed to the trial court.

First, the Court addressed the proper means to challenge an order granting or denying class action status. The Court held that such an order, unless another order is also at issue on appeal, is never appealable. Although the proper vehicle is a common-law petition for writ of certiorari filed with the Court, litigants dissatisfied with a class certification ruling were cautioned “that they should not lightly seek review of that ruling through a common-law writ of certiorari.”

Next, the Court considered the order granting class action status. The Court reached the merits questions of commonality and predomination. A class representative must demonstrate that the questions presented are common to all class members and predominate over individual questions. The common theme in Henson’s complaint was that each member of the class was raped.

Therefore, to be a member of the class, the class member must prove he or she was raped. “This is a question of fact SCDC and SCDJJ enjoys the right to trial by jury,” the Court wrote. With a class estimated to have a 1,768 minimum and possibly a 66,800 maximum, it would require a minimum of 1,768 separate jury trials to determine whether a person qualifies as a class member. Such a “task would—to put it mildly—overwhelm the court,” the Court stated. Once class membership was determined, notice must be given and then a jury would have to determine the DOC and SCDJJ’s liability and damages.

The liability question changed in the time periods from 2012 to the present. The Court illustrated that point by looking at the Prison Rape Elimination Act (PREA). The first change occurred in 2014 when the Department of Justice (DOJ) required states to provide “assurances” towards PREA compliance and actual “certifications” of compliance. Then, in 2016, the DOJ decreed that starting in 2022 assurances were no longer required but certification of actual compliance was required. Finally, another 2016 change required that, from 2022 to 2025, a state could make “emergency certifications” that it “audited no less than 90% of prisons” for PREA compliance. South Carolina’s PREA response varied from: (1) no reporting until 2014, (2) submitting assurances of future compliance from 2014 to 2022 and (3) instead of providing verifications it submitted emergency certifications until 2025.

The various liability questions “means it is somewhat—if not highly—likely the answers to the question whether prison officials were negligent in failing to prevent the rape is not going to be the same for all class members,” the Court concluded. The questions of proximate cause and damages would require individual findings by the jury and require at least 1,768 juries.

Class counsel has a fiduciary duty to each class member, which requires pursuit of claims by class members whose claims may be doubtful. “Thus, it is doubtful,” the Court wrote, “to imagine how counsel might par down the potential members of the classes even to the overwhelming ‘minimum’ of 1,768.”

The purpose of Rule 23 was to create efficiency in litigating claims affecting larger numbers of persons. The commonality requirement in the Rule requires “that the issues are sufficiently similar so that the class action will be a more efficient means of resolving the problem.” See: McGann v. Mingo, 340 S.E.2d 154 (Ct. Appeal 1986). One or more common issues will not suffice to certify a class. Commonality requires “the capacity of a class-wide proceeding to generate common answers to drive resolution of the litigation.”

Finally, the Court turned to the issue of predominance. While Rule 23 was fashioned after Federal Rules of Civil Procedure 23, it omitted language in subsections (b) and (c). Specifically, it omitted Rule 23(b)(3)’s requirement “that the question of law or fact common to the members of class predominate over any questions affecting only individual members.”

The Court considered the history and precedential interpretations of South Carolina’s Rule 23, and it embraced the concept that predominance is “inherent” in the Rule. It held the Rule has always required that “a class plaintiff must demonstrate to the trial court that questions common to all class members are of such a critical degree of importance to the overall resolution of the litigation that the class-wide answers to those common questions are determinative, and thus overshadow the necessity of trying any individualized questions.”

Henson failed to make such a showing. “To the extent there is a common question here, it is overwhelmed by the numerous individual questions the jury and trial court must litigate,” the Court concluded in its order reversing and remanding the trial court’s class certifications order. See: Henson v. S.C. Dep’t of Corr., 2026 S.C. LEXIS 122.  

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