Penland v. Warren County Jail , 797 F.2d 332 ( 1986 )

MERRITT, Circuit Judge.

Plaintiffs appeal the District Court’s order denying certification of their proposed class action and the magistrate’s adverse ruling on two substantive issues in their prisoner civil rights action over conditions in a small county jail on the Cumberland plateau in Tennessee.

Plaintiffs George Penland and Jimmy Earls filed this action pro se while serving time at the Warren County Jail in Tennessee. Later, able counsel filed an amended complaint in their action, stating a claim under 42 U.S.C. § 1983 (1982) and addressing eight issues: prisoner idleness, health care, mail, discipline, fire safety, food, access to courts, and visitation. The plaintiffs also sought, under Fed.R.Civ.P. 23(b)(2), certification of a class composed of all present and future prisoners at the Warren County Jail (and a subclass composed of all pretrial detainees held at the jail). District Judge Taylor denied plaintiffs' motion for class certification.

The parties consented, under 28 U.S.C. § 636(c)(1) (1982), to have the action heard by a magistrate. Penland and Earls were released from jail before their case was tried, but plaintiff Vernon Ward then intervened. The magistrate ruled in plaintiffs’ favor on all substantive issues except prisoners’ access to courts and their visitation conditions. Plaintiffs appealed to the District Court, under 28 U.S.C. § 636(c)(4), and Judge Hull affirmed the magistrate’s order.

The defendants did not appeal the District Court’s order, and their counsel states that they are taking measures to comply with the magistrate’s opinion. Plaintiffs wished to appeal, but, because the parties had agreed that the magistrate should try the case and that appeal of right would be to the District Court under 28 U.S.C. § 636(c)(1) & (4), plaintiffs could not appeal to the Court of Appeals as of right. Rather, they moved the Sixth Circuit for leave to appeal under 28 U.S.C. § 636(c)(5). The Court heard the matter en banc, and Judge Contie writing for the Court granted plaintiffs’ motion for leave to appeal on questions of class certification, access to the courts, and prisoner visitation rights. Pen-land v. Warren County Jail, 759 F.2d 524 (6th Cir.1985) {en banc). Judge Contie’s opinion holds that the two substantive issues were “substantial and important question^] of law that ha[d] not directly been addressed by this court,” 759 F.2d at 531, but he stated no holding on any of the issues. This appeal followed.

On plaintiffs’ motion to certify the proposed class action, the District Court found that all the requirements of Fed.R.Civ.P. 23(a) were met: (1) the members of the proposed class are so numerous that joinder would be impracticable, (2)

questions of law or fact are common to the proposed class, (3) the proposed named representatives’ claims would be typical of the claims of class members generally, and (4) the named representatives, and their counsel, would fairly and adequately protect the interests of the class. Nevertheless, Judge Taylor denied certification on grounds that certifying a class action was “neither necessary to protect the interests of the desired class, nor is it a superior method for providing the relief asked for in this type of lawsuit.” The Judge held that any declaratory or injunctive relief ordered in a non-class-action suit would “likely inure to the benefit of other similarly situated individuals,” so there was no need for the action to go forward as a class action. (Quoting Inmates, Washington City Jail v. England, 516 F.Supp. 132 (E.D.Tenn. 1980)). Despite Judge Taylor’s denial of class certification, this suit has been treated as a class action almost from its inception.¹

Judge Contie, speaking for our en banc Court, criticized the denial of class certification:

The “superior method” criterion has been held relevant, however, only to class actions sought to be certified under F.R. C.P. 23(b)(3). Moreover, this court has specifically held that notice to class members is not required in all F.R.C.P. 23(b)(2) class actions, although notice may be given in a particular case under F.R.C.P. 23(d)(2) if any of the interests listed therein merit protection. Thus, there exists a substantial likelihood that the class certification issue was decided on a ground inconsistent with a decision of this court. Whether the district court and the magistrate actually failed to follow precedent is a question that we leave to the panel assigned to hear this case.

759 F.2d at 531 (emphasis added, citations omitted). Since all the named plaintiffs in this action have been released from jail, under normal procedure we must either dismiss the action as moot or certify it as a class action. We agree with the en banc Court’s criticism of the procedure followed below and we reverse the District Court’s refusal to certify this suit as a class action under Fed.R.Civ.P. 23(b)(2). See also Johnson v. City of Opelousa, 658 F.2d 1065, 1069-70 (5th Cir.1981).

Moving to the substantive points of this appeal, plaintiffs argue that conditions in the Warren County Jail concerning prisoners’ visitation and prisoners’ access to courts or legal representation violate the first amendment rights of the prisoners and of their visitors. This jail is located in a rural Tennessee county, and we note that measures that are achievable in larger institutions may not be reasonable in the smallest of local jails.

The first amendment, as construed, sets up a balancing test in these situations and requires an examination of reasonable alternatives available. See Bounds v. Smith, 430 U.S. 817, 830, 97 S.Ct. 1491, 1499, 52 L.Ed.2d 72 (1977) (held, in prisoner’s right of access to courts suit, that the first amendment is satisfied if the goal of meaningful access is achieved by any of the alternative means available); accord, Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 581, 100 S.Ct. 2814, 2829-30, 65 L.Ed.2d 973 (1980) (Justice Burger, in a plurality opinion, exhorts trial judge to consider reasonable alternatives to barring press from criminal trial). The record is completely lacking in evidence concerning alternative methods of access to courts and visitation. The record lacks complete information detailing present jail conditions in relation to prisoners’ access to courts, to legal representation, and to legal resource material and conditions concerning prisoners’ visitation rights and facilities. Therefore, we remand this matter to the District Court for the court to assess present jail conditions relative to plaintiffs’ claims in comparison with reasonable alternatives.

1 . We are informed by counsel that plaintiff Ward was released from the jail while the matter was still pending, and that the District Court informed defendants that it would not entertain any motions to dismiss on mootness grounds.