519 F.2d 1090 (5th Cir. 1975), 74-3098, Jones v. Diamond

Docket Nº:74-3098.
Citation:519 F.2d 1090
Party Name:Marvin JONES, on his own behalf and on behalf of those similarly situated, Plaintiff-Appellant, v. Fred R. DIAMOND, Individually and in his official capacity as Sheriff of Jackson County, Mississippi, and his agents, subordinates and employees, et al., etc., Defendants-Appellees.
Case Date:September 26, 1975
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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519 F.2d 1090 (5th Cir. 1975)

Marvin JONES, on his own behalf and on behalf of those

similarly situated, Plaintiff-Appellant,


Fred R. DIAMOND, Individually and in his official capacity

as Sheriff of Jackson County, Mississippi, and his

agents, subordinates and employees, et

al., etc., Defendants-Appellees.

No. 74-3098.

United States Court of Appeals, Fifth Circuit

September 26, 1975

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[Copyrighted Material Omitted]

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John L. Walker, Jr., Jackson, Miss., David M. Lipman, Lawyers' Committee for Civil Rights Under Law, Washington, D. C., for plaintiff-appellant.

Raymond L. Brown, Pascagoula, Miss., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Mississippi.

Before CLARK, Associate Justice, [*] and GOLDBERG and AINSWORTH, Circuit Judges.

GOLDBERG, Circuit Judge:

This case is a virtual paradigm of the therapy afforded by Rule 23 in section 1983 claims. Marvin Jones, a black prisoner confined in jail awaiting trial, 1 instituted this suit under 42 U.S.C. § 1983 in an attempt to reform the conditions of the Jackson County jail. 2 Shortly thereafter, to his consternation, his efforts were aborted by an order of the district court denying his motion to certify the case as a class action and dismissing as defendants the individual members of the Jackson County Board of Supervisors. Regrettably, plaintiff's inattention to the details of appellate procedure compounded his difficulties. Thus, before reaching the question whether the district court's rulings were correct on the denial of the class action and the dismissal of the Board members, we must ascertain whether we have appellate jurisdiction over these orders.

Jones sued individually and on behalf of the class of all past, present, and future inmates of the Jackson County jail, alleging violations of the First, Fourth, Sixth, Eighth, Ninth, Thirteenth, and Fourteenth Amendments to the Constitution

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cognizable under 42 U.S.C. § 1983. Complaining of particular discrimination against black prisoners, he also denominated a subclass of all black persons awaiting trial and incarcerated in the jail. Named as defendants were Fred R. Diamond, the Sheriff of Jackson County; United States Fidelity and Guaranty Company, surety on the sheriff's bond; 3 Roy Tootle, the deputy sheriff with responsibility for the jail; Andrew Thomas, a convicted felon serving as a trusty in the jail; 4 and Lum R. Cumbest, Edward A. Khayat, J. C. May, William T. Roberts, and Olin H. Davis, the members of the Jackson County Board of Supervisors. All defendants were sued in both their individual and official capacities. The relief requested was threefold: a judgment declaring defendants' conduct unlawful and unconstitutional; a preliminary and permanent injunction requiring comprehensive reform of the jail conditions, programs, and procedures; and damages in the amount of $500,000 compensatory and $500,000 punitive damages for the named plaintiff, and unascertained amounts for the unnamed class members.

Plaintiff's effort to serve as standard bearer for his proposed class was soon halted by the district court. His original complaint was filed on August 13, 1973, together with interrogatories to defendant Diamond. Diamond's answers to the interrogatories were properly filed with the court on September 26, 1973. The defendant members of the Board of Supervisors filed a motion requesting dismissal of the suit as to them on September 17, 1973, on the ground that they neither personally directed nor participated in any wrongful activity. On April 24, 1974, plaintiff filed his motion for an order permitting the class action under Rule 23, Federal Rules of Civil Procedure. 5

On May 10, 1974, the district court granted the Supervisors' motion to dismiss with prejudice and denied the proposed class action. On June 14, 1974, the court amended the May 10 order as to the Supervisors to state that "there is no just reason for delay and therefore the adjudication with regard to these defendants is final," 6 thereby permitting an appeal from that order. On the same day, the court certified the denial of the class action under 28 U.S.C. § 1292(b) for purposes of an interlocutory appeal. However, although plaintiff did file a notice of appeal on June 24, 1974, he did not apply to the Court of Appeals for permission to appeal under section 1292(b) until some ten months later, in open disregard of the statutory ten day requirement. Thus, unless we have jurisdiction of the appeal from the class action order independent of section 1292(b), we must dismiss the appeal for lack of a final judgment. See Ballas v. Symm, 5 Cir. 1974, 494 F.2d 1167, 1169; Graci v. United States, 5 Cir. 1973, 472 F.2d 124, 126, cert. denied, 1973, 412 U.S. 928, 93 S.Ct. 2752, 37 L.Ed.2d 155. Cf. Dunlop v. Ledet's Foodliner of Larose, Inc., 5 Cir. 1975, 509 F.2d 1387; Barfield v. Weinberger, 5 Cir. 1973, 485 F.2d 696.

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I. Appealability of Order Denying Class Action

As a general rule, an order denying a class action that simply strikes the class allegations and permits the individual case to proceed is not appealable. Greenhouse v. Greco, 5 Cir. 1974, 496 F.2d 213; Songy v. Coastal Chemical Corp., 5 Cir. 1972, 469 F.2d 709; Williams v. Mumford, D.C. Cir. 1975, 511 F.2d 363, petition for cert. pending, 44 U.S.L.W. 3033 (U.S. July 22, 1975). However, two exceptions to this rule have emerged. The first, introduced by Cohen v. Beneficial Industrial Loan Corp., 1949, 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528, applies where the denial of the motion virtually sounds the "death knell" to the litigation because the claims of individual class members are so small that no one person would pursue the suit alone. Appeals under the Cohen rationale are taken under 28 U.S.C. § 1291, since the practical effect of the order is to end the litigation. See generally 7A Wright & Miller, Federal Practice and Procedure § 1802 at 272 (1972). Given the facts before us, we decline to negotiate the rough terrain of Cohen, since we find it unnecessary to our analysis of plaintiff's appeal. 7

The second road appellant may travel is smoother, though narrow. When the class action bears a symbiotic relationship to the frustration of relief, interlocutory assistance may dawn upon the jurisprudential horizon. Section 1292(a)(1) of Title 28 permits an interlocutory appeal from an order "granting, continuing, modifying, refusing, or dissolving injunctions" where

. . . the substantial effect of (the district court's) order denying leave to proceed as a class is to narrow considerably the scope of any possible injunctive relief in the event plaintiffs ultimately prevail on the merits.

Yaffe v. Powers, 1 Cir. 1972, 454 F.2d 1362, 1364. See Price v. Lucky Stores, Inc., 9 Cir. 1974, 501 F.2d 1177, 1179; Hackett v. General Host Corp., 3 Cir. 1972, 455 F.2d 618, cert. denied, 1972, 407 U.S. 925, 92 S.Ct. 2460, 32 L.Ed.2d 812; Brunson v. Board of Trustees of School Dist. No. 1, 4 Cir. 1962, 311 F.2d 107, cert. denied, 1963, 373 U.S. 933, 83 S.Ct. 1538, 10 L.Ed.2d 690. In deference to the general policy of discouraging interlocutory appeals, 8 we deem it advisable to set out in some detail the circumstances under which a section 1292(a)(1) appeal will be permitted from the denial of class action certification.

The first, and perhaps obvious, requirement is that the plaintiff's prayer for an injunction must constitute the heart of the relief he seeks. The desired injunction must be capable of resolving the substantive issues of the claim; it cannot merely maintain the status quo during the litigation. Siebert v. Great Northern Development Co., 5 Cir. 1974, 494 F.2d 510. See Switzerland Cheese Ass'n v. E. Horne's Market, Inc., 1966, 385 U.S. 23, 87 S.Ct. 193, 17 L.Ed.2d 23. The rationale for this limitation lies in the purpose of section 1292 itself, which was crafted "to permit litigants to effectually challenge interlocutory orders of serious, perhaps irreparable, consequence." Baltimore Contractors, Inc. v. Bodinger, 1955, 348 U.S. 176, 181, 75 S.Ct. 249, 252, 99 L.Ed.2d 233, 238. See New England Power Co. v. Asiatic Petroleum Corp., 1 Cir. 1972, 456 F.2d 183. If plaintiff's action here were stripped of its class character, Jones would lack standing to complain of conditions, practices, and procedures that had not touched him personally. A final injunction on the merits would be empty indeed, since he himself is no longer in jail and the possibility of his return is speculative at best. Although his claim for

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damages survives, the primary purpose of the complaint is to force a system-wide reform of the jail. 9 Even if the denial of Jones' class does not meet the "death knell" requirement of Cohen, a point on which we express no opinion, it surely satisfies the standard of "serious, perhaps irreparable consequence" enunciated in Baltimore Contractors. Thus, both the type of relief Jones seeks and the general purpose of section 1292 militate toward permitting this interlocutory appeal.

The second requirement for appealability is that the practical result of the order denying the proposed class must be to deny the requested broad injunction. We look in these cases, as we should in most, to the bottom line, to see if the plaintiff was effectively denied access to the courts, for the effect of the order controls the applicability of section 1292. Gray Line Motor Tours, Inc. v. City of New Orleans, 5 Cir. 1974, 498 F.2d 293, 296; United States v. Texas Education Agency, 5 Cir. 1970, 431 F.2d 1313, 1315. Cf. Eisen v. Carlisle & Jacquelin, 1974, 417 U.S. 156, 171, 94 S.Ct. 2140, 2149, 40 L.Ed.2d 732, 744-45. In Gray Line Motor Tours, this Court stated the...

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