Joshua Howard v. William Pollard

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-8025
J OSHUA H OWARD, et al.,
Plaintiffs-Petitioners,
v.
WILLIAM P OLLARD, et al.,
Defendants-Respondents.
____________________
Petition for Leave to Appeal from an Order of the United States
District Court for the Eastern District of Wisconsin.
No. 15-CV-557 — Rudolph T. Randa, Judge.
____________________
SUBMITTED D ECEMBER 4, 2015 — DECIDED D ECEMBER 29, 2015
____________________
Before WOOD, Chief Judge, and R IPPLE and K ANNE , Circuit
Judges.
P ER C URIAM. The pro se plaintiffs in this case—a group of
inmates at the Waupun Correctional Institution in Wiscon-
sin—brought this federal action against the governor of
Wisconsin, the prison warden, and roughly 30 other persons.
They alleged (among other things) that the defendants were
violating the Eighth Amendment by providing inadequate
mental-health services and by permitting overcrowding at

-- 1 of 5 --

2 No. 15-8025
Wisconsin’s prisons. The plaintiffs filed a motion for class
certification, which the district court denied on the ground
that, because they were proceeding pro se, the plaintiffs
could not adequately represent a class. The plaintiffs now
petition this court under Federal Rule of Civil
Procedure 23(f) for permission to appeal the district court’s
decision. We deny the petition.
I
BACKGROUND
Along with their complaint, the plaintiffs filed a “Motion
for Class Certification and Appointment of Counsel” seeking
to certify three classes: (1) “all prisoners who are now or in
the future will be confined in the [Wisconsin Department of
Corrections],” (2) all prisoners who are now or in the future
will be confined at [Waupun Correctional Institution],” and
(3) all prisoners with a serious mental illness or disability
“who are now or in the future will be confined at” Waupun.
The plaintiffs also asserted that they “should be appointed
counsel to represent the certified classes … pursuant to
Rule 23(g) of the Federal Rules of Civil Procedure.” They did
not, however, state that they had made any effort to secure
counsel on their own.
The district court denied the motions for class certifica-
tion and appointment of counsel. The court denied the mo-
tion for class certification on the ground that the pro se
plaintiffs could not adequately represent a class. The court
also denied the plaintiffs’ motion to appoint counsel under
Rule 23(g), explaining that the rule “is only implicated when

-- 2 of 5 --

No. 15-8025 3
a class is first certified under Rule 23(a)(4).” And since the
motion for class certification was being denied, the judge
continued, Rule 23(g) did not come into play. In the same
order, the court screened the complaint, dismissing it for
violations of Federal Rule of Civil Procedure 18 (as contain-
ing unrelated claims) and Rule 20 (as improperly joining
plaintiffs). The court gave the plaintiffs a month to file
amended complaints.
II
DISCUSSION
In this petition under Rule 23(f), the petitioners’ principal
argument is that interlocutory review is appropriate because
the district court erred by employing circular reasoning. The
petitioners state that the court “denied certification due to
the absence of counsel and then denied the appointment of
counsel by invoking Rule 23(g)’s requirement that the class
be certified.” Under the district court’s logic, the petitioners
argue, “the ability of pro se litigants to initiate class actions
would not exist” and would require prisoners to obtain
counsel before filing a suit that seeks “to remedy structural
deficiencies in their system of health care.” And obtaining
counsel, the petitioners assert, is “an almost insurmountable
task.”
We deny the Rule 23(f) petition because it does not raise
a novel issue of class-certification law and because the peti-
tioners do not establish that the denial of class certification
signals the death knell of their action. See Blair v. Equifax
Check Servs., Inc., 181 F.3d 832, 834–35 (7th Cir. 1999). We

-- 3 of 5 --

4 No. 15-8025
note that the district court granted the petitioners leave to
file amended individual complaints, and they could still at-
tempt to secure counsel.
The decisions of other circuits support our determination
that this 23(f) petition does not raise novel issues of law.
Those decisions establish the principle that it is generally not
an abuse of discretion for a district court to deny a motion
for class certification on the ground that a pro se litigant is
not an adequate class representative. See DeBrew v. Atwood,
792 F.3d 118, 131–32 (D.C. Cir. 2015); Fymbo v. State Farm Fire
& Cas. Co., 213 F.3d 1320, 1321 (10th Cir. 2000); Oxendine v.
Williams, 509 F.2d 1405, 1407 (4th Cir. 1975). 1
The petitioners suggest that they would have been ade-
quate class representatives if the district court had simply
granted their motion for appointment of counsel under
Rule 23(g). But the purpose of Rule 23(g) is not to enable
pro se plaintiffs to obtain recruited counsel in conjunction
with class certification; the purpose of the rule is to ensure
that the proposed class counsel is adequate. See FED. R. C IV.
P. 23 advisory committee’s note to the 2003 amendments
(explaining that before addition of subsection (g), courts
“scrutinized proposed class counsel as well as the class repre-
sentative under Rule 23(a)(4)”; that “[t]his experience has
1 We have relied on this principle in a recent unpublished decision. In
Goodvine v. Meisner, two prisoners who were proceeding pro se sought to
certify a class of “hundreds of mentally ill inmates” at Columbia
Correctional Institution in Wisconsin. 608 F. App’x 415, 417 (7th Cir.
2015). The district court determined that the plaintiffs “could not fairly
represent the class interests because they were pro se (and had not made
an effort to secure class counsel).” Id. We stated that these were “sound
reasons” for denying class certification. Id.

-- 4 of 5 --

No. 15-8025 5
recognized the importance of judicial evaluation of the pro-
posed lawyer for the class”; and that “Rule 23(a)(4) will con-
tinue to call for scrutiny of the proposed class representative,
while [subdivision (g)] will guide the court in assessing pro-
posed class counsel as part of the certification decision” (em-
phases added)); see also Sheinberg v. Sorensen, 606 F.3d 130,
132 (3d Cir. 2010) (“[U]nder the plain language of
[Rule 23(g)], a district court’s decision to certify a class must
precede the appointment of class counsel.”). And even if the
district court had ignored the petitioners’ reference to Rule
23(g) and considered their motion for appointment of coun-
sel before (and independently from) considering their mo-
tion for class certification, the request for counsel would
have been properly denied because the petitioners gave no
indication that they had made any effort to retain counsel
themselves. See Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir.
2007) (en banc).
Conclusion
For the reasons set forth in this opinion, the 23(f) petition
is denied.
PETITION DENIED.

-- 5 of 5 --