No. 07-1412
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
June 19, 2009
PRECEDENTIAL. Argued February 3, 2009. On Appeal from the United States District Court for the District of New Jersey (D.C. Civil No. 06-cv-05033). District Judge: Honorable Stanley R. Chesler.
Lewis Ira Hagan (pro se) James Hemphill (pro se) Efraim Esquilin (pro se) William Weiss (pro se) Christos Papacristos (pro se) Louis George Johnston, Jr. (pro se) Tymil Mason (pro se) Claude Franklin (pro se) Peter Braun (pro se) Toboris Wright (pro se) Allan Lovenson (pro se) Adult Diagnostic & Treatment Center 8 Production Way P. O. Box 190 Avenue, NJ 07001 Christopher Mark (pro se) Rockview SCI P. O. Box A Bellefonte, PA 16823
Oliver Mason (pro se) Apartment 1114 180 South Orange Street Newark, NJ 07103
Ronald Young (pro se) 49 Autumn Court Ledgewood, NJ 07852
Joel McHugh, Esq. [ARGUED] Nancy Winkelman, Esq. Schnader Harrison Segal & Lewis 1600 Market Street, Suite 3600 Philadelphia, PA 19103 Counsel for Appellants Lewis Ira Hagan; James Hemphill; Efraim Esquilin; Christopher Mark; William Weiss; Christos Papacristos; Louis George Johnston, Jr.; Tymil Mason; Claude Franklin; Peter Braun; Oliver Mason; Toboris Wright; Ronald Young; Allan Lovenson
Larry R. Etzweiler, Esq. [ARGUED] Keith S. Massey, Jr., Esq. Office of Attorney General of New Jersey Division of Law 25 Market Street Richard J. Hughes Justice Complex Trеnton, NJ 08625 Counsel for Defendant - Amicus Curiae State of New Jersey
OPINION OF THE COURT
RENDELL, Circuit Judge.
The central question before this Court is whether it is clear and manifest that Congress, through the
Appellants are fourteen state inmates of the Adult Diagnostic & Treatment Center in Avenel, New Jersey (“ADTC“). The prisoners jointly filed a single complaint, on behalf of themselves and a purported class, alleging that officials associated with the facility violated their constitutional rights by failing to contain and treat a serious and contagious skin condition. The prisoners requested in forma pauperis (“IFP“) status and the appointment of counsel. Before the Defendants had been served, the District Court for the District of New Jersey dismissed thirteen of the prisoners sua sponte, with leave to file amended individual complaints, after concluding that prisoners were barred from permissive joinder under
This appeal presents several issues. First, we must determine whether we have jurisdiction to review the District Court‘s order denying joinder, and if so, whether IFP prisoners are barred from Rule 20 joinder as a matter of law. We are also
For the reasons discussed below, we conclude that we have jurisdiction to review the District Court‘s order denying joinder, and that IFP prisoners are not categorically barred from joining as plaintiffs under Rule 20. Furthermore, filing fees should be assessed against any plaintiff permitted to join under Rule 20 as though each prisoner was proceeding individually. Finally, we elect to exercise jurisdiction over the class certification question, and conclude that the District Court‘s explanation for denying certification was inadequate. We will accordingly remand the matter for further proceedings consistent with this opinion.
I. Background
Appellants filed a single pro se complaint on October 20, 2006 in the U.S. District Court for the District of New Jersey, against officials associated with the ADTC, a state facility for the detention and treatment of convicted sex offenders. The prisoners allege that the Defendants violated their Eighth and Fourteenth Amendment rights by failing to address the threat of a serious and undiagnosed contagious skin disease, possibly scabies, spreading through the facility. Appellants also moved to certify a class of all persons similarly situated pursuant to
Before Defendants had been served, the District Court issued an order sua sponte on January 25, 2007, dismissing without prejudice all Plaintiffs, except Lewis Hagan, upon concluding that permissive joinder was unavailable to IFP prisoner litigants. The Court suggested that Rule 20 joinder may be preempted by certain provisions of the
In the same sua sponte order, the District Court also denied Appellants’ motion to proceed as a class action pursuant to
None of the Plaintiffs filed amended complaints within the requisite 30 days, but all joined in appealing to this Court for review of both the joinder and class certification rulings. On February 1, 2007, Appellants also filed a motion to stay all action relating to the District Court‘s January 25 order, and asserted their belief that the Court‘s applications of Rules 20 and 23 were incorrect. On May 4, 2007, after the originаl 30-day period for amendment had expired, the District Court granted a stay and stated in its order that Appellants would have 30 days to file
We assigned counsel as amicus curiae on behalf of Appellants and asked counsel to address the following questions: (1) Whether this Court has jurisdiction to review the District Court‘s order denying joinder; (2) if so, whether prisoners are barred from Rule 20 joinder as a matter of law; (3) if prisoners are not barred from permissive joinder, how court fees should be assessed among the joint plaintiffs; and (4) whether the District Court improperly denied class certification. Although Defendants have not yet been served, we invited the Attorney General of New Jersey to similarly respond to these questions through an amicus brief, and she has done so. We address each of the questions presented below.
II. Rule 20 Joinder
A. Jurisdiction
Appellants seek review of the District Court‘s order denying joinder and dismissing all claimants except Hagan without prejudice, and with leave to amend. The only arguable basis for this Court to review the decision is
While an order dismissing a complaint without prejudice is normally not final within the meaning of
We cannot discern from our prior cases a clear rule for determining when a party has elected to stand on his or her complaint. In Frederico, we determined that a plaintiff elected to stand on her complaint where at no time during thе proceedings did she seek to correct the purported pleading deficiencies, but instead repeatedly asserted that her complaint was sufficient as filed. Id. at 192. In Batoff v. State Farm Insurance Co., 977 F.2d 848 (3d Cir. 1992), we determined that we had jurisdiction when a plaintiff did not amend his dismissed complaint within the 30 days allotted by the district court. Id. at 851 n.5. We were also satisfied that certain plaintiffs in Tiernan v. Devoe, 923 F.2d 1024 (3d Cir. 1991), elected to stand on their dismissed claims after they renounced, by letter briefs filed with this Court, any intention to reinstitute proceedings against the defendants at issue. Id. at 1031.
There is no question that none of the prisoners amended their complaints within the 30 days ordered by the District Court. All of the Plaintiffs joined the instant appeal, and there is no evidence that any ever wavered from their argument that they should be permitted to join under Rule 20. These circumstances indicate that the Appellants stand on their initial complaint, as had the plaintiffs in Frederico and Batoff. A potentially distinguishing aspect of this case is that the Appellants
Yet the District Court did not grant the stay until May 4, 2007, long after the 30 days afforded to the Plaintiffs had expired. From the expiration of the dismissal order granting leave to amend until the grant of the stay, the Plaintiffs were in the same position as the plaintiff in Batoff. If they were not intent on staking their claims on the fate of this appeal, they would have been expected to file amended complaints as the deadline neared, in the absence of a ruling on the requested stay. After the 30 days expired, the subsequent issuance of the stay – which included a further right to amend – was a fortuitous development outside of their control. We are persuaded that the Plaintiffs have sufficiently demonstrated their intent to stand on their original complaint.
Moreover, by requesting the stay, Appellants were squarely stating their opposition to District Court‘s interpretation of Rule 20, and their desire to proceed jointly. The Court‘s invitation to the prisoners to amend and proceed individually directly contradicted their position on appeal. This situation is different from a typical dismissal with leave to amend where the amendment could cure a particular pleading flaw or failure. This is also different from a typical joinder situation in which a court might grant or deny a motion to amend a complaint in order to add plaintiffs. See Michelson v. Citicorp Nat‘l Servs., Inc., 138 F.3d 508, 512 (3d Cir. 1998). Here, the District Court effectively ruled the joint complaint legally inadequate, and subsequent individual pleading by Appellants would have effectively conceded the joinder issue. This should be viewed as the type of situation where jurisdiction exists under
For these reasons, we conclude that we have jurisdiction under
B. Rule 20 and IFP Prisoner Litigants
Appellants argue that the District Court erred in concluding that prisoners were categorically barred from joining as plaintiffs under Rule 20. Amicus for Respondents contends that the District Court interpreted Rule 20 correctly, in light of certain provisions of the PLRA, and in consideration of the unique circumstances of incarceration. We conclude that nothing in the PLRA demonstrates that Congress intended to alter the plain language of Rule 20, and that conditions of incarceration should not be considered in disregarding the unambiguous language of the Rule. Accordingly, prisoner litigants may not be categorically precluded from joining as plaintiffs under Rule 20.
A district court‘s order severing parties for failure to satisfy the joinder requirements of Rule 20 is reviewed for abuse of discretion. Coughlin v. Rogers, 130 F.3d 1348, 1351 (9th Cir. 1997). A district court abuses its discretion when “its decision rests upon a clearly erroneous finding of fact, an errant conclusion of law or an improper application of law to fact.” Danvers Motor Co., Inc. v. Ford Motor Co., 543 F.3d 141, 147 (3d Cir. 2008) (internal quotation marks omitted). The District Court‘s order denying joinder was not
The language of Rule 20 that is pertinent to this matter is plain and unambiguous:
Persons may join in one action as plaintiffs if:
(A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and
(B) any question of law or fact common to all plaintiffs will arise in the action.
The District Court did not apрly Rule 20 by determining whether Appellants’ claims arise from “the same transaction, occurrence, or series of transactions or occurrences,” or whether there was “any question of law or fact common to all plaintiffs.”
1. Rule 20 and the PLRA
The two provisions of the PLRA that have troubled other courts in the context of joinder of claims are codified as
Section 1915(g) limits the availability of IFP status to prisoners through a “three strike” rule, which provides:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior
occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.
The District Court did not expressly decide that there was a conflict between
However, decisions from the Courts of Appeals for the Sixth and Seventh Circuits are at odds with Hubbard. In a sua sponte administrative order addressing the effects of the PLRA, the Chief Judge of the Sixth Circuit ordered that filing fees are to be divided among prisoner litigants choosing to join in suits, thus indicating that prisoners were not barred from doing so. In re Prison Litigation Reform Act., 105 F.3d 1131, 1137-38 (6th Cir. 1997). The Court of Appeals for the Seventh Circuit engaged in a more thorough analysis when it reversed a district court‘s interpretation of Rule 20 in Boriboune v. Berge, 391 F.3d 852 (7th Cir. 2004). The court considered the same two concerns that District Court considered here – namely, that joinder of claims in the context of prisoner litigation presents unique challenges, and that joinder could undermine
It does not follow that
§ 1915 has superseded Rule 20. The PLRA does not mention Rule 20 or joint litigation. Repeal by implication occurs only when the newer rule is logically incompatible with the older one. And there is no irreconcilable conflict between Rule 20 and the PLRA: Joint litigation does not relieve prisoners of any duties under the more recent statute.
Id. (internal citations omitted).
The court concluded that, while the PLRA did not preempt joinder,
The Seventh Circuit‘s reasoning in Boriboune is compelling. The PLRA did not alter the text of Rule 20, or make any reference to the Rule. Lacking such an express reference, the only way to conclude that the PLRA altered Rule 20 would be to determine that the later statute repealed the Rule by implication as to prisoner litigants. This requires more than mere tension in applying the later law‘s provisions to the earlier. “[R]epeals by implication are not favored and will not
Since the PLRA does not even address permissive joinder, much less cover the whole subject area, we cannot conclude that the later statute repealed Rule 20 unless the two provisions are in irreconcilable conflict. In interpreting the later statute, “[w]e will not infer a statutory repeal unless . . . such a construction is absolutely necessary in order that the words of the later statute shall have any meaning at all.” National Ass‘n of Home Builders, 127 S. Ct. at 2532 (internal quotation marks, brackets, and ellipses omitted).
The plain language of
Such an interpretation can also be read in harmony with
merely ensures that an IFP prisoner’s fees, when paid by installment, will not exceed the standard individual filing fee paid in full. Nothing in
We are merely called upon in this case tо determine how two laws should operate together. The two laws at issue accomplish independent and complementary purposes, which can and should coexist. As the Seventh Circuit noted, “[j]oint litigation does not relieve prisoners of any duties under the more recent statute.” Boriboune, 391 F.3d at 854. The application of repeal by implication would undermine congressional goals. Moreover, it would expand repeal by implication into an everyday principle, since Congress routinely enacts legislation with provisions that do not neatly coexist with existing statutes.
We think that the Seventh Circuit was correct when it observed that the “three strikes” provision of
Thus, we conclude that the PLRA did not repeal Rule 20 joinder as to IFP prisoner litigants. Nothing in the PLRA speaks with sufficient clarity or creates an irreconcilable conflict, and the statute cannot be deemed to exclude IFP prisoner litigants from Rule 20 joinder as a matter of law.
2. Rule 20 and Conditions of Incarceration
In addition to the purported conflicts between Rule 20 and the PLRA, the District Court also relied on general conditions faced by inmate populations to conclude that joinder was unavailable. The Court noted several difficultiеs in multiple-prisoner litigations that were identified by other district courts in Wasko v. Allen County Jail, 2006 WL 978956 (N.D. Ind. April 12, 2006) and Swenson v. MacDonald, 2006 WL 240233 (D. Mont. Jan. 30, 2006). The difficulties identified by those courts were (1) “the need for each plaintiff to sign the pleadings, and the consequent possibilities that documents may be changes as they are circulated“; (2) “prisoners may seek to compel prison authorities to permit them to gather to discuss the joint litigation“; (3) “jail populations are notably transitory, making joint litigation difficult“; and (4) the possibility that coercion may affect the relations between the inmates. (App. 12.) The District Court concluded that these considerations made “joint litigation exceptionally difficult.” (Id.) The Court did not address any considerations specific to the Plaintiffs in this action.4
The District Court based its decision to deny joinder on an erroneous interpretation of Rule 20, and we therefore conclude that the Court abused its discretion in denying joinder to Appellants.6 Aside from correcting this error of law, however, our decision does not limit the District Court’s broad authority with regard to joinder under Rule 20, which is, after all, discretionary. In exercising its discretion, the District Court must provide a reasoned analysis that comports with the requirements of the Rule, and that is based on the specific fact pattern presented by the plaintiffs and claims before the court. It is insufficient for a court to rely on general assumptions regarding the circumstances of incarceration.
III. Class Certification
Appellants also argue that the District Court erred in denying their motion for class certification under Rule 23(b)(3). In their complaint, Appellants claimed that inmates of the ADTC were either subject to actual skin infections, or were subject to the threat of future injury due to deliberate indifference on the part of prison officials in failing to contain the contagion. The District Court denied class certification for failure of the named Plaintiffs to meet certain requirements of Rule 23(a).
This Court has the discretion to exercise jurisdiction over an interlocutory appeal denying class certification.
We review a district court’s denial of class certification for abuse of discretion. In re LifeUSA Holding Inc., 242 F.3d 136, 143 (3d Cir. 2001). A district court abuses its discretion when “its decision rests upon a clearly erroneous finding of fact, an errant conclusion of law or an improper application of law to fact.” Danvers Motor Co., Inc. v. Ford Motor Co., 543 F.3d 141, 147 (3d Cir. 2008) (internal quotation marks omitted).
Rule 23(a) provides that members of a class may only sue on behalf of a class if (1) the class is so numerous that joinder is impractical; (2) there are common questions of law or fact; (3) the claims of the representative parties are typical of the class; and (4) “the representative parties will fairly and adequately protect the interests of the class.”
The Court stated that “the claims of the representative party may not be typical of the claims of the class” because the purported class would inсlude inmates that suffered life-threatening injuries, and inmates that suffered no physical injuries. (App. 13) The Court also reasoned that the treatment received by different members of the class could vary. “In light of the disparate factual circumstances of class members, especially the difference in regard to medical needs and injury,” the Court determined that a class action was undesirable. (Id.) Furthermore, the Court stated that a prisoner proceeding pro se could not adequately represent a class of inmates.
The District Court’s reasoning is problematic. In Hassine v. Jeffes, 846 F.2d 169 (3d Cir. 1988), this Court ruled that a district court erred in failing to certify a class of prisoners that alleged that they were all constitutionally injured by the conditions at their facility. The Court reasoned that, with regard to typicality and commonality,
Rule 23 does not require that the representative plaintiff have endured precisely the same injuries that have been sustained by the class members, only that the harm complained of be common to the class, and that the named plaintiff demonstrate a personal interest or “threat of injury ... [that] is ‘real and immediate,’ not ‘conjectural’ or ‘hypothetical.’ ”
Id. at 177 (quoting O‘Shea v. Littleton, 414 U.S. 488, 494 (1974)).
On the limited basis of the District Court’s brief opinion, we fail to see how the Plaintiffs in this case failed to satisfy the requirements of Hassine. Appellants alleged that all prisoners at the facility, including the named plaintiffs, were subject to the threat of an injury. The complaint squarely alleges that prison officials violated the Eighth Amendment by being “deliberately indifferent to the exposure of inmates to a serious, communicable disease,” and that the amendment “also protects against future harms to inmates.” (App. 27.) The District Court failed to articulate why, at this early stage, this alleged threat of injury is insufficiently typical or common to allow Appellants’ action to proceed as a class.
Moreover, we do not question the District Court’s conclusion that pro se litigants
IV. Conclusion
The District Court’s order denying joinder to the Appellants was based on an erroneous conclusion of law and will be REVERSED. The District Court also abused its discretion in concluding that Appellants could not proceed as a class, and the order denying class certification will be VACATED. We will REMAND the matter for further consideration consistent with this Opinion.
HAGAN v. ROGERS
No. 07-1412
JORDAN, Circuit Judge, Concurring in part and Dissenting in part
The issues in this appeal are, first, whether prisoners seeking to proceed in forma pauperis under the Prison Litigation Reform Act (“PLRA” or the “Act“),
Judge Rendell, adopting the position of the Seventh Circuit in Boriboune v. Berge, 391 F.3d 852 (7th Cir. 2004), concludes that
The best guide to Congressional intent is the Act itself. See Disabled in Action of Pennsylvania v. Southeastern Pennsylvania Transp. Auth., 539 F.3d 199, 210 (3d Cir. 2008) (“We assume that Congress expresses its intent through the ordinary meaning of its language and therefore begin with an examination of the plain language of the statute.“) (internal quotation marks and citation omitted). Congress’s use of the passive construction, “the fee collected,” indicates that
I am, however, unable to agree with Judge Roth’s resolution of the fees conundrum because it appears incompatible with the plain language of the PLRA. The Act is phrased in the singular: “if a prisoner brings a civil action or files a civil appeal, the prisoner shall be required to pay the full amount of a filing fee.”
Congress’s choice of language in
Of course, there are, as the District Court found here, a number of reasons why allowing prison inmates to jointly litigate may generally be unwise. Beyond both the parsing of language in the PLRA and abstract thoughts about the Federal Rules of Civil Procedure, there remains a world of practical difficulty in dealing with legal claims pressed by prisoners. Thus, even thоugh joinder under Rule 20 is not prohibited by the PLRA, I am unable to agree with the Majority’s conclusion that the District Court was wrong to deny the motion for joinder in this case.
The District Court’s well-reasoned opinion identifies several issues that deserve greater respect than we have given them. If joinder of prisoners is freely permitted, there will be inevitable demands to allow meetings and other communications about litigation strategy. Trying to coordinate prisoner schedules and monitor such interactions, while dealing with the virtually certain insistence that prisoner discussions of privileged matters must not be monitored, will place obvious and onerous demands on prison administrators, not to mention making simple safety and disciplinary measures more difficult to enforce, since every added layer of legalism adds friction to the administrative process. Society accepts a certain degree of such friction, because efficiency is not the sole or the primary goal of our penal system. But
The realities of prison operation, with which district court judges become familiar through the many pro se prisoner cases filed each year, are discounted by the Majority’s suggestion that “joint litigation by inmates of the [Adult Diagnostic and Treatment Center] may be manageable” because the ADTC is “a relatively small facility with approximately 600 inmates ... .” (Maj. Op. 22-23 n.4.) Even at a comparatively small facility, permitting inmates to congregate and having to monitor materials passed between them, all while maintaining the safety of other inmates and prison personnel, would be no small feat.
And, of course, that says nothing of the impact our decision will have on not-so-small institutions.
The transitory nature of the prisoner population is another factor identified by the District Court as problematic for multi-prisoner case administration. Repeated questions about standing and mootness will arise from an ever-changing list of plaintiffs, and ordinary logistics will be troublesome. Even in this case, with a moderate number of plaintiffs, the shifting prison population has proven a challenge. By the time the case was argued to us, only five of the fourteen plaintiffs were still in the Adult Diagnostic and Treatment Center, while eight others were no longer in the New Jersey correctional system at all. While keeping tabs on those outside the prison system may be easier in this case because formerly incarcerated plaintiffs are required to register as sex offenders, there is no guarantee that released plaintiffs will be locatable under other circumstances. As our own docket reflects, hunting for plaintiffs imposes administrative burdens. See Docket 12/24/08 and 1/09/2009 letters from the Clerk of the Third Circuit to the ADTC (seeking forwarding information for released and deceased inmates for purposes of notification of oral argument).
Perhaps of greatest concern is the addition of a new subject for intimidation and coercion within the prison setting. Even well-run prisons can present a dangerous environment, in which freedom of choiсe is constrained not just by official means. Inmates may be compelled through threats, physical force, or more subtle forms of duress to join lawsuits in which they would otherwise have no interest. Climbing onboard a complaint about prison conditions may seem like an excellent idea when the alternative is presented by a fellow inmate with a record for assault.
The concerns behind the District Court’s decision are not a fanciful parade of horribles. They reflect a seasoned judge’s view of predictable outcomes and an understanding that treating incarcerated criminals as if they had nothing to gain by gaming the litigation system is systemically bad both for the courts and the prisons. Thus, I am not inclined, as the Majority is, to say that a general statement of opposition to Rule 20 joinder in prisoner cases constitutes an abuse of discretion. Moreover, while the District Court did not fully explain its application of that general rule to the facts of this case, its denial of joinder was sufficiently tied to the present particulars that we should recognizе the decision as fairly disposing of the case on its facts and not simply as announcing “general assumptions regarding the circumstances of incarceration.”12 (Maj. Op. at 24.)
HAGAN v. ROGERS
No. 07-1412
ROTH, Circuit Judge, Concurring in Part and Dissenting In Part:
Judge Rendell correctly holds that we have jurisdiction over this case and that prisoners may join cases under Federal Rule of Civil Procedure 20. I disagree, however, with her holding that each prisoner in a joint-prisoner action must individually pay the entire appellate-docketing fee. Because that holding is incongruous with the relevant statutory scheme, I respectfully dissent from that portion of her opinion. I would require that each prisoner pay an apportioned amount of a single appellate-docketing fee.
Judge Rendell’s holding is incorrect because it violates
In the case before us, the fourteen prisoners cannot each pay $450 (yielding a $6300 intake) because “parties filing a joint notice of appeal . . . are required to pay only one [$450] fee.” See Judicial Conference Schedule of Fees, Cоurt of Appeals Miscellaneous Fee Schedule ¶ 1
Judge Rendell’s holding violates
The holding in the case that Judge Rendell relies on also violated
The Sixth Circuit Court of Appeals, by contrast, supports assessing an apportioned amount of filing fees in joint-prisoner actions. Thе Sixth Circuit addressed the issue of how to assess fees and costs in a two-prisoner suit. See Talley-Bey v. Knebl, 168 F.3d 884, 885 (6th Cir. 1999). It affirmed a district court’s division of costs and fees between two prisoners. Id. at 887. It noted that “any fees and costs that a district court or that we may impose must be equally divided among all the participating prisoners.” Id. (emphasis added).
I would assess an apportioned fee among the fourteen prisoners to satisfy the $450 appellate-docketing fee. This would satisfy both