Joshua Howard v. William Pollard
2015 U.S. App. LEXIS 22741
| 7th Cir. | 2015Background
- Pro se inmates at Waupun Correctional Institution sued Wisconsin officials alleging Eighth Amendment violations (inadequate mental-health care and overcrowding) and sought class certification for three classes of prisoners.
- Plaintiffs filed a combined motion for class certification and appointment of counsel under Rule 23(g) but did not show they had attempted to retain counsel themselves.
- The district court denied class certification because pro se plaintiffs cannot adequately represent a class, and denied appointment of counsel because Rule 23(g) applies only after a class is certified.
- The district court also screened the complaint and dismissed parts for violating Rules 18 and 20 (unrelated claims and improper joinder), granting leave to file amended individual complaints.
- Plaintiffs petitioned this court under Federal Rule of Civil Procedure 23(f) for permission to appeal the denial of class certification, arguing the district court’s reasoning was circular and effectively foreclosed pro se class actions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether pro se plaintiffs may serve as adequate class representatives | Pro se plaintiffs argued denial was circular: court denied certification for lack of counsel then refused to appoint counsel under Rule 23(g), which they say requires prior appointment to proceed | District court argued adequacy under Rule 23(a)(4) is separate; Rule 23(g) appoints counsel after a class is certified and serves to vet proposed class counsel | Denied petition: courts may deny certification because pro se plaintiffs are inadequate; Rule 23(g) does not supply counsel before certification |
| Whether Rule 23(g) permits appointment of class counsel before certification | Plaintiffs contended Rule 23(g) should allow appointment to enable pro se plaintiffs to litigate class claims | Defendants and district court maintained Rule 23(g) is implicated only after certification; its purpose is to evaluate counsel proposed for a certified class | Court held Rule 23(g) follows certification; its purpose is to assess proposed counsel for a certified class, not to rescue pro se representatives |
| Whether the 23(f) petition raised a novel legal question warranting interlocutory review | Plaintiffs asserted the issue is novel and important for prisoner class actions and access to counsel | Respondents argued precedent forecloses novelty; denial of certification is not dispositive of the action and plaintiffs can amend or seek counsel | Court denied 23(f) as not presenting a novel issue and because plaintiffs could still proceed individually or attempt to secure counsel |
Key Cases Cited
- Blair v. Equifax Check Servs., Inc., 181 F.3d 832 (7th Cir. 1999) (standards for interlocutory review of class-certification orders)
- DeBrew v. Atwood, 792 F.3d 118 (D.C. Cir. 2015) (district courts may deny certification where pro se plaintiffs are inadequate representatives)
- Fymbo v. State Farm Fire & Cas. Co., 213 F.3d 1320 (10th Cir. 2000) (same)
- Oxendine v. Williams, 509 F.2d 1405 (4th Cir. 1975) (same)
- Sheinberg v. Sorensen, 606 F.3d 130 (3d Cir. 2010) (Rule 23(g) applies after class certification; appointment of counsel typically follows certification)
- Pruitt v. Mote, 503 F.3d 647 (7th Cir. 2007) (pro se litigants must show they tried to obtain counsel before court recruits counsel)