David A. Kifer v. Brad Ellsworth

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-4072
D AVID A. K IFER ,
Plaintiff-Appellant,
v.
B RAD E LLSWORTH , et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Evansville Division.
No. EV 79-66-C-Y/H—Richard L. Young, Judge.
____________
S UBMITTED J ULY 23, 2003—DECIDED O CTOBER 17, 2003
____________
Before CUDAHY , P OSNER , and R IPPLE , Circuit Judges.
P OSNER , Circuit Judge. This is a procedurally confused
case; we write in the hope of heading off future such tan-
gles. Almost a quarter of a century ago, a class action suit
was filed in federal court challenging, as a violation of
the Eighth Amendment’s cruel and unusual punishments
clause, conditions in the Vanderburgh County [Indiana] Jail.
A class was certified that consisted of current and future
inmates of the jail. Only injunctive relief was sought, and in
1994 the district court approved a settlement providing for
injunctive relief and retained jurisdiction to enforce it. Five

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2 No. 02-4072
years later, one of the inmates, and hence a member of the
class, David Kifer, asked the district court in effect
to modify the injunction. He was able to retain a lawyer
from the Indiana Civil Liberties Union to represent him in
this endeavor. The lawyer entered an appearance as class
counsel and Kifer was listed as a plaintiff in the captions
of various court documents, though no order was entered
appointing him as the, or a, class representative. As far
as we can determine, no class representative has ever been
appointed in this litigation. That is one of several anomalies,
of which more below, in this case.
The lawyer entered into negotiations with the jail officials.
In the course of these negotiations, Kifer became dissatisfied
with him and filed a flurry of motions—a motion for
appointment of (new) class counsel, a motion to withdraw
from the litigation (reflecting his dissatisfaction with the
relief proposed by the lawyer), and, five days later, a motion
to intervene in the litigation. When these motions were filed,
Kifer had already been discharged from the jail, and several
months later the district court denied them on the ground
that he lacked standing. Shortly afterward, the ICLU lawyer
negotiated a further settlement agreement with the jail
officials, and the district court then issued an order stating:
“The court now ORDERS this case to be administratively
closed until the filing of the final settlement agreement.” So
far as we are aware, no such agreement has been filed.
The case is rich in puzzles. If as appears Kifer was named
as a plaintiff when he hired the lawyer, albeit without ben-
efit of a formal order to that effect, how could he intervene?
A party cannot intervene in his own case, since the purpose
of intervention is to become a party. It is true that Kifer had
moved five days earlier to withdraw from the litigation, but
the motion had not been granted. It is also true that he had

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No. 02-4072 3
left the jail by the time he filed the motion to intervene, and
so his claim as a class member was moot, but the mooting
of the class representative’s personal claim does not bar him
from continuing to represent the class, Sosna v. Iowa, 419
U.S. 393, 399-403 (1975); Franks v. Bowman Transportation Co.,
424 U.S. 747, 755-56 and n. 8 (1976); Primax Recoveries, Inc. v.
Sevilla, 324 F.3d 544, 546-47 (7th Cir. 2003); Martens v.
Thomann, 273 F.3d 159, 173 n. 10 (2d Cir. 2001), as otherwise
defendants might delay the grant of relief in class actions
indefinitely by buying off the class representatives in
succession. Primax Recoveries, Inc. v. Sevilla, supra, 324 F.3d
at 547; Culver v. City of Milwaukee, 277 F.3d 908, 910 (7th Cir.
2002). Moreover, although eventually Kifer’s name was
eliminated from the captions of court documents, no other
class representative has been designated. There was no
named plaintiff besides Kifer when his name appeared in
the captions, and there is none now; throughout, the
plaintiffs are designated only as “Vanderburgh County Jail
Inmates.” Yet a class action suit cannot proceed in the
absence of a class representative, Fed. R. Civ. P. 23(a); Culver
v. City of Milwaukee, supra, 277 F.3d at 912-13; Great Rivers
Coop. of Southeastern Iowa v. Farmland Industries, Inc., 120
F.3d 893, 899 (8th Cir. 1997); so maybe Kifer still is that
representative—in which event the motion to intervene was
moot when made.
And, supposing he is no longer the class representative,
the only defensible ground for intervention by a class
member, that is, for a class member’s having his status
changed from that of an anonymous member of the class to
that of a class representative, is that he has good reason to
doubt that the existing class representative is acting in the
best interests of the class, or of the would-be intervenor
member of the class. Crawford v. Equifax Payment Services,
Inc., 201 F.3d 877, 880 (7th Cir. 2000). The fact that there was

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4 No. 02-4072
no class representative would certainly be a good reason for
a class member to complain that he wasn’t being adequately
represented! But if Kifer was not the class representative,
then when he left the jail and so ceased to be a member of
the class (for remember that only injunctive relief is being
sought in this class-action suit) he no longer had any basis
for intervening; he had no legally protected interest in the
suit.
Perhaps his motion to withdraw from the litigation should
be construed as a motion to withdraw as class representa-
tive, but we have just seen that this cannot do him any
good. The motion cannot be construed as a motion to opt
out, not because there is no right to opt out of a Rule
23(b)(2) class action (that is, an action that seeks only de-
claratory or, as in this case, injunctive relief, Berger v. Xerox
Corp. Retirement Income Guarantee Plan, No. 02-3674, 2003
WL 21770803, at *7 (7th Cir. Aug. 1 2003); Jefferson v.
Ingersoll Int’l, Inc., 195 F.3d 894, 897 (7th Cir. 1999))—for a
party can always ask the district court to exercise its discre-
tionary authority to permit opting out of such a suit, Molski
v. Gleich, 318 F.3d 937, 947 (9th Cir. 2003); cf. Parker v. Time
Warner Entertainment Co., 331 F.3d 13, 24 (2d Cir. 2003)
(concurring opinion)—but because he’s no longer a member
of the class.
We also do not understand what the district judge meant
when he said that the case was “administratively closed.”
Clearly the case was not over with, nor even the phase of
the case touched off by Kifer’s initial complaint about the
adequacy of the original settlement, since the order states
that the court is awaiting the submission of a new settle-
ment agreement (presumably a modification of the original
one) in final form. Kifer’s appeal from the denial of his
motion to intervene is moot, because, as we pointed out
earlier, he cannot benefit from an order to improve con-

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No. 02-4072 5
ditions in a jail in which he is no longer being held. He
says that he’s still a resident of Vanderburgh County and
may be arrested and taken to the county jail at any time, but
that contingency—which if taken seriously would entitle the
entire county population, indeed perhaps the entire Ameri-
can population (since anyone might some day find himself
in the Vanderburgh County Jail), to join the class— is too
remote to keep his claim alive. Higgason v. Farley, 83 F.3d
807, 811 (7th Cir. 1996) (per curiam); Knox v. McGinnis, 998
F.2d 1405, 1413-14 (7th Cir. 1993); Smith v. Hundley, 190 F.3d
852, 855 (8th Cir. 1999); cf. Spencer v. Kemna, 523 U.S. 1, 13-15
(1998); City of Los Angeles v. Lyons, 461 U.S. 95, 103 (1983).
We urge the district judge to take a firm grip of this aged
litigation, to deal promptly and decisively with Kifer’s mo-
tion to withdraw, and to make sure that the plaintiff class
has a representative. The appeal, however, must be
D ISMISSED .
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-17-03

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