Kimber v. Tallon

SUMMARY ORDER 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 *28 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 injunc-tive 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. 1 *29 For the foregoing reasons, we hereby VACATE AND REMAND the judgment of the district court. Footnotes [1] We note that appointed counsel for appellants indicated to the Court at oral argument *29 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.