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Pro Se Tips and Tactics

Prisoners who challenge jail or prison conditions or practices in a pro se lawsuit should be aware of the possibility of turning the case into a class action. In deciding whether to seek class treatment, you should consider both whether your case meets the legal requirements for becoming class action and, if so, whether there are advantages to litigating the case as a class action.

A. Could My Case Be A Class Action?

1. Class Certification Under Rule 23

The process of asking that a case become a class action is called "class certification." In federal court cases, such as suits under 42 U.S.C. § 1983, class certification is governed by Federal Rule of Civil Procedure 23 ("Rule 23").

Subsections (a) and (b) of Rule 23 are the most important to class certification. In order to get a class certified, your case must meet all four requirements of Rule 23(a) and also be at least one of the types of cases described in Rule 23(b).

a. Defining the Class

You should first think through a "class definition," that is a description of who is in the class you want to have the court certify. For example, for prisoners seeking an injunction against general conditions in a jail, courts have approved classes described as "all present or future prisoners in the Smith County Jail." A proper class definition might be much narrower in some cases, depending on who is affected by the challenged practice. For example, if you challenge only what happens in a segregation unit and not in the whole prison, the definition should probably be "all prisoners who are now held or who will in the future be held in segregation in Jones Prison."

b. Rule 23(a) Requirements

In order to certify a class, the court must find that all four of the following criteria of Rule 23(a) are present in your case:

-23(a)(1) -"The class is so numerous that joinder of all members is impracticable": This means that there be more than just a few people impacted by the condition or practice you challenge. There normally cannot be a class of two or three or even 10 members; there have to be so many that getting everyone before the court is not practical and so class treatment makes more sense. There is no set number for meeting this requirement, and as few as 25 or so have been found to be a class in the right circumstances. "All the present or future prisoners" in a jail or prison is almost always found to fulfill the numerosity requirement because including people who will come into the facility in the future describes a class of many people.

-23(a)(2) -"There are questions of law or fact common to the class": You must show that the court can decide at least some of the important issues in the case by looking at representative cases, because the same issues are presented for many people. Every question of law or fact does not have to be common, but if the most important questions are not common, and only less important ones are common, that may not be enough.

The issues must be common, not merely similar. A class of 33,000 prisoners held by the Texas Department of Criminal Justice in many prisons is proper because TDCJ runs the whole system and imposes policies and practices that apply to all. See: Ruiz v. Estelle , 679 F.2d 1115 (5th Cir. 1982). However, prisoners held in different county jails are not in the same class because the defendants and the facts will necessarily be different from jail to jail. Stewart v. Winter , 669 F.2d 328 (5th Cir. 1982).

-23(a)(3) -"The claims . . . of the representative parties are typical of the claims . . . of the class": This means that the so-called "named plaintiffs" or "class representatives" -- those plaintiffs actually named in the complaint -- must present situations that allow the class claims to be decided. For example, in a case challenging the adequacy of a prison's health care system, one or more named plaintiffs must allege a factual situation that raises issues about the health care system.

Often, it will be easy to show that the named plaintiffs present "typical" claims, as everyone will be in an identical situation (for example, all subjected to the same exercise policy in a segregation unit). And, as with the "commonality" requirement of Rule 23(b)(2), Rule 23(b)(3)'s "typicality" requirement allows class certification even if the named plaintiffs' situation is not precisely the same as the situation of all others in the class. "These prerequisites mandate only that complainants' claims be common, and not in conflict." Hassine v. Jeffes, 846 F.2d 169, 177 (3rd Cir. 1988). See also the other cases cited in Hassine .

-23(a)(4) -"The representative parties will fairly and adequately protect the interests of the class": This means that the named plaintiffs must not have any conflicts with the proposed class, such as seeking relief that would hurt some members of the class. Just because a named plaintiff seeks damages does not necessarily put him or her in conflict with a class for injunctive relief (see Stewart , 669 F.2d at 334-335), although there could be a conflict in such a case. The "adequacy" issue also involves whether the class is represented by counsel who have the skill and resources to conduct a case which affects many people. ( Pro se plaintiffs rarely conduct class actions, see discussion below).

c. Rule 23(b) Requirements

Rule 23(b) presents a list of several situations where class certification is proper. If any one of these is present (and all four Rule 23(a) criteria have been met), a class can be certified.

You should review Rule 23(b) to see what parts may fit your case. Here, I discuss briefly only the portion of Rule 23(b) that is nearly always the basis for class certification in prison or jail lawsuits seeking injunctive relief, Rule 23(b)(2).

Rule 23(b)(2) allows class certification where "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." Translated, this means that where there are prison officials whose policies or practices are affecting the whole class and the class is asking for an injunction to stop those policies or practices, class certification is appropriate. Indeed, this part of Rule 23(b) was designed so that civil rights cases challenging overall governmental practices (such as school desegregation or prison conditions cases) could be litigated as class actions. This is the part of the rule that fits almost all prison or jail cases challenging conditions and practices, and it is the one you should use unless it really doesn't fit your case.

One situation in which Rule 23(b)(2) would probably not fully fit your case is if you are asking for money damages for a class. Damages classes, and the question of individual damages for prisoners who are in a class, present complicated issues that are beyond the scope of this short column. Simply be aware that if you are seeking damages for all class members that you will probably have to look beyond Rule 23(b)(2) to other parts of Rule 23(b) to get your damages class certified.

2. Local Rules On Pleading And Timing

Many federal courts have local rules regarding pleading class actions. For example, some require specific notations on the complaint as well as a special section in the complaint with a class definition and statements about how the requirements of Rule 23(a) and (b) are met. In addition, many courts have a deadline for seeking class certification. Study local rules carefully to avoid waiving the chance to certify a class.

3. What About Notice To The Class?

In some cases, usually involving money claims, Rule 23(c) requires early notice to the class and an opportunity for class members to "opt out." However, in Rule 23(b)(2) conditions cases seeking only injunctive relief, class notice is not absolutely required because one cannot "opt out" of a class that simply seeks to have a jail or prison run according to law.

Notice to all of a class conditions case may be very useful, however, and the court can order notice to a 23(b)(2) class. You should think about whether notice will useful, and ask the court to order it if it will help.

Notice to all class members is required before any class action is settled. Rule 23(e). In a conditions case, the court will order that notices be posted or given to class members living in the jail or prison at the time the settlement is proposed.

B. Should I Move for Certification of a Class?

If you cannot meet the legal requirements for class certification, don't bother to try to make your case a class action. If you make a frivolous class motion, you will only delay resolution of your case and lose credibility with the court. However, if you can reasonably try to make your case into a class action, the next question is whether you should do so.

Class actions have many advantages in any case seeking declaratory and injunctive relief challenging conditions or practices that affect many people living in closed institutions. Class actions for all who live in a prison or jail will not become moot just because the named plaintiffs are released, as long as some named plaintiffs were in the jail or prison on the day the complaint was filed. An injunction or settlement obtained in a class action can also stay in place long after the named plaintiffs are released. In addition, the potential scope of injunctive relief in class cases -- meaning how broad and comprehensive the relief can be in impacting the whole prison environment -- is much greater in class actions than in individual cases.

Courts will rarely if ever allow a class action to be litigated by a pro se prisoner. Once a class is certified, the court has a special duty to protect the rights of a large number of people, and will almost always appoint counsel for the class. This could cut different ways in different cases. In a large, complex case challenging conditions and practices that affect many, it is an obvious advantage to have counsel. Also, class certification will usually provide counsel in a case in which a pro se prisoner might otherwise have difficulty getting counsel appointed. On the other hand, if there is some important reason you have to do the case pro se , you are very unlikely to remain as counsel if you are successful in getting a class certified.

Classes have been certified even in some habeas corpus cases, but only where the habeas petition challenge a statute or practice that affects the incarceration of many people and the criteria of Rule 23 are met. See, for example, United States ex rel. Sero v. Preiser , 506 F.2d 1115 (2d Cir. 1974).

Both the law and tactical considerations relating to class actions are complex and cannot be covered fully in this short column. Applicable law will vary depending on the exact circumstances of your case. For further detail, there is an excellent multi-volume work worth consulting, if you can get access to it. It is Newberg On Class Actions (3rd Ed. 1992), containing an entire chapter entitled "Criminal Justice Class Actions."

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