Opinion
11-1430(L) 11-1554(Con)
02-26-2014
KEVIN KIMBER, Plaintiff-Appellant, v. KEITH TALLON, Superintendent, Southern State Correctional Facility, individually and in his official capacity, CELESTE GIRRELL, Superintendent, Northern State Correctional Facility, individually and in her official capacity, ROBERT HOFMANN, JOHN GORCZYK, KATHLEEN LANMAN, MICHAEL O'MALLEY, ANITA CARBONELL, STUART GLADDING, DANIEL FLORENTINE, RAYMOND FLUM, CAROL CALLEA, ANDREW PALLITO, Commissioner, Vermont Department of Corrections, individually and in his official capacity, Defendants-Appellees, JACOB SEXTON, and all other inmates similarly situated, RICHARD PAHL, and all others similarly situated, JOSE TORRES, and all others similarly situated, DANIEL MUIR, and all others similarly situated, JAMES ANDERSON, and all others similarly situated, DAVID MCGEE, and all other inmates similarly situated, Plaintiffs.
FOR APPELLANT: TIMOTHY W. HOOVER (William J. Simon, on the brief), Phillips Lytle LLP, Buffalo, New York. FOR APPELLEES: DAVID MCLEAN, on behalf of William H. Sorrell, Attorney General for the State of Vermont, Waterbury, Vermont.
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 26th day of February, two thousand fourteen. PRESENT: DENNIS JACOBS,
RAYMOND J. LOHIER, JR.,
CHRISTOPHER F. DRONEY,
Circuit Judges.
FOR APPELLANT:
TIMOTHY W. HOOVER (William J.
Simon, on the brief), Phillips
Lytle LLP, Buffalo, New York.
FOR APPELLEES:
DAVID MCLEAN, on behalf of
William H. Sorrell, Attorney
General for the State of
Vermont, Waterbury, Vermont.
Appeal from a judgment of the United States District Court for the District of Vermont (Murtha, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court be VACATED AND REMANDED.
Kimber, on behalf of a class of Vermont prisoners, appeals from the judgment of the United States District Court for the District of Vermont (Murtha, J.), granting summary judgment dismissing his claim that 24-hour security lighting in the cells violates the Eighth Amendment's prohibition against cruel and unusual treatment. The district court appointed the Prisoner Rights Office ("PRO") of the Vermont Defender General to serve as class counsel. Kimber, as a class representative, argues here (and in the district court) that the PRO's performance was deficient. We assume the parties' familiarity with the underlying facts, the procedural history, and the issues presented for review.
The state contests Kimber's standing to represent the class in this appeal because he is pro se and unable to understand the complex issues in the case. Generally, it is inappropriate for a pro se litigant to represent the interests of a class. See, e.g., Hagan v. Rogers, 570 F.3d 146, 158-59 (3d Cir. 2009). However, Kimber appears before us with counsel. The consequences of disallowing Kimber from challenging the PRO's representation are also troubling when the class counsel has abandoned any appeal and the class consists of inmates who may otherwise have trouble retaining counsel. We conclude Kimber has standing to raise the issues before us.
The state also argues that Kimber's appeal was mooted when he was released from incarceration. While release might moot Kimber's individual claim for injunctive relief, his release did not occur until after the class was certified, and "class certification will preserve an otherwise moot claim." Comer v. Cisneros, 37 F.3d 775, 798 (2d Cir. 1994). The state contends that the district court erred in the initial certification of the class, since not all of the named plaintiffs were subjected to 24-hour security lighting at the time of certification. The district court properly concluded, however, that the prisoners' claims are "inherently transitory," such that the class certification relates back to the filing of the complaint. See Amador v. Andrews, 655 F.3d 89, 100-01 (2d Cir. 2011); see also Muhammad v. N.Y.C. Dep't of Corr., 126 F.3d 119, 123 (2d Cir. 1997) (noting, in a prison conditions case, that there is an exception to the mootness doctrine "generally invoked to preserve a class action in which some members of the class retain a cognizable interest in the outcome after the claim of the named representative has become moot"). As a result, the class claim is not moot.
We review a district court's appointment and supervision of class counsel for abuse of discretion. See Maywalt v. Parker & Parsley Petroleum Co., 67 F.3d 1072, 1078-79 (2d Cir. 1995); Foe v. Cuomo, 892 F.2d 196, 198 (2d Cir. 1989) ("[T]he question of whether the district judge abused his discretion in supervising the counsel before him must be considered in light of the judge's obligation to insure that the plaintiff class is adequately represented throughout the litigation."). In appointing the PRO, the district court failed to address the mandatory factors set forth in Fed. R. Civ. P. 23(g). The court therefore did not consider the PRO's inexperience litigating class actions or under the Federal Rules of Civil Procedure more generally (such as discovery requirements). Moreover, the court was aware at the time of appointment--and throughout the litigation below--that the PRO lacked the resources necessary to litigate this case properly. The PRO's deficiencies as class counsel became more apparent as it blew through filing deadlines, requested numerous filing extensions, and failed to communicate with the named plaintiffs.
The PRO generously volunteered to take on this case after the earlier withdrawal of two other attorneys. However, its lack of resources and its inexperience in federal class actions are significant considerations. We recognize that the district court had few options, or none, but we must conclude that it abused its discretion in appointing and retaining the PRO as class counsel. We, therefore, vacate the judgment of the district court. On remand, the district court will consider an appropriate way forward. The law of the case doctrine does not foreclose any option to achieve this goal--including decertification of the class or appointing new class counsel for the currently certified class.
We note that appointed counsel for appellants indicated to the Court at oral argument a willingness to accept an appointment to continue the representation if this Court vacated the district court's grant of summary judgment. Of course, we leave this to the district court to consider on remand.
For the foregoing reasons, we hereby VACATE AND REMAND the judgment of the district court.
FOR THE COURT:
CATHERINE O'HAGAN WOLFE, CLERK