Cruz v. Hauck

• Decision Date: 08 October 1980
• Docket Number: No. 79-3283,79-3283
• Citation: 627 F.2d 710
• Parties: Fred A. CRUZ et al., Plaintiffs, Enrique B. Andrade and Isaias Lara, Plaintiffs-Appellants, v. W. B. (Bill) HAUCK et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 710

627 F.2d 710

Fred A. CRUZ et al., Plaintiffs, Enrique B. Andrade and Isaias Lara, Plaintiffs-Appellants, v. W. B. (Bill) HAUCK et al., Defendants-Appellees.

No. 79-3283.

United States Court of Appeals, Fifth Circuit.

Oct. 8, 1980.

Lonnie W. Duke, San Antonio, Tex., Frances T. Freeman Cruz, Washington, D.C., for plaintiffs-appellants.

Michael P. Hodge, Asst. Dist. Atty., San Antonio, Tex., for defendants-appellees.

Appeal from the United States District Court for the Western District of Texas.

Before GOLDBERG, TATE and SAM D. JOHNSON, Circuit Judges.

TATE, Circuit Judge:

This protracted litigation, centering around repeated attempts to obtain meaningful access to the courts on behalf of indigent prisoners in Bexar County Jail in San Antonio, Texas, has been in progress since 1970. Although the named plaintiffs are no longer incarcerated in the jail, they seek to represent a class consisting of all indigent prisoners presently so incarcerated. The plaintiffs are before us for the fourth time, and they appeal from the district court's refusal to certify the class and its determination that the entire suit has now become moot. We find merit in the plaintiffs' contentions and again reverse and remand.

Context Facts

This suit was initially filed by the plaintiffs pro se ¹ as a class action more than ten years ago, on May 4, 1970, seeking declaratory and injunctive relief under 42 U.S.C. § 1983 against the enforcement of jail regulations restricting inmates' use and possession of legal materials. ² In 1975, on the third appeal to this court, we held that the rules approved by the district court were constitutional if the inmates had adequate access to the courts through counsel, as the district court had held. However, because "the findings of fact (did) not demonstrate that inmates wishing to file either habeas corpus petitions challenging the constitutionality of their incarceration, or civil rights actions challenging the conditions of their confinement have access to counsel," we remand "for an evidentiary hearing to determine whether all inmates of the jail have adequate access to the courts through means other than by access to legal materials." Cruz v. Hauck, 515 F.2d 322, 332 (5th Cir. 1975).

In our opinion we noted that the named plaintiffs were apparently no longer confined in the jail and that there had been no certification of the class. However, we stated that "(t)he parties . . . have treated the litigation as though the district court made an appropriate certification," id. at 325 n.1, and we held that a case or controversy existed because the "legal issues presented continue to affect the prisoners in the jail," id.

Following our last remand in this case, the district judge referred pretrial and discovery matters to the United States magistrate, ³ and the magistrate ordered the plaintiffs to replead their cause of action. The plaintiffs did so, alleging that they represented the class of all indigent inmates of the Bexar County Jail and contending that the class members' right to access to the courts was being violated. The plaintiffs alleged that since there was no adequate access to the courts through means other than by access to legal materials, the defendants should establish "a well-equipped law library for . . . use . . . at all reasonable times . . . , staffed by a trained law librarian." The defendants, in response, denied the existence of the class and contended that in any event the plaintiffs were not proper representatives of such a class because their claims were moot since they were no longer confined in the Bexar County Jail.

Shortly thereafter, the plaintiffs moved for certification of the class, relying on language in our prior opinion and contending that the issues were "capable of repetition, yet evading review." Three days after moving for certification, the plaintiffs also moved to add John Crawford, who was at that time incarcerated in the jail, as an additional named plaintiff. The district judge, however, held that Crawford had already requested a library in a prior suit ⁴ and that therefore the issue was res judicata as to him. The judge also stated that the plaintiffs had given "no good reason why . . . Crawford should be added as a party plaintiff" and that it was apparent that plaintiffs were trying to join Crawford "solely to bolster" their motion for class certification.

On October 13, 1976, the defendants moved to dismiss the suit as moot on the ground that a library had been established at the jail four months earlier. ⁵ Although applauding the establishment of the library, the plaintiffs responded that they still did not have adequate access to the courts because the library was too small and the hours were too short, and they argued that there were many inmates who must still rely on counsel for access to the courts because they did not have the education, knowledge, or skill necessary to use the new library.

Eleven months later, in September of 1977, the magistrate set a date for a hearing on the plaintiffs' motion for certification and the defendants' motion to dismiss. At that time, the magistrate denied a second motion by the plaintiffs to join John Crawford as an additional named plaintiff. This motion was denied on the ground that Crawford was not an inhabitant of the Bexar County Jail. ⁶

When the magistrate submitted his findings and recommendations, he found that the alleged class action was moot because the class had never been certified and because the inmates had adequate access to the courts through the use of an adequate law library and also through the help of writ-writers and assistance of counsel. He recommended that the Motion to Dismiss be granted and that the Motion to Certify be either denied or dismissed.

The plaintiffs timely filed their objections to the magistrate's findings and contended: 1) that mere delay does not prevent certification; 2) that a live controversy still existed because the library did not have the Federal Supplement, did not have trained personnel, did not accommodate enough inmates, and was therefore still inadequate; 3) that one of the named plaintiffs had been back in jail after having been released on parole and that therefore the issues were "capable of repetition, yet evading review"; 4) that not all inmates were capable of using the library (especially not in San Antonio where there were "numerous unlettered non-English-speaking confinees"); and 5) that not all inmates had access to the courts through means other than access to legal materials. The district judge remanded to the magistrate for consideration of the plaintiffs' objections.

In the magistrate's "New or Amended Findings," he stated that the failure to obtain certification was the plaintiffs' fault because they had "kept the litigation on appeal almost since its inception" and had "wholly neglected to obtain a ruling on their class issue question until time had passed it up." He also stated that the action could not be maintained as a class action because there was no longer any case or controversy since an adequate law library had been established. Further, the magistrate found that the lack of the Federal Supplement was de minimus, that there was no requirement to have trained library personnel, and that therefore there was no live controversy between the defendants and the alleged class members.

The plaintiffs again objected, on the following grounds: 1) that the magistrate had not acknowledged that Mr. Andrade, one of the named plaintiffs had been confined in the jail from March to September of 1977; ⁷ 2) that the library was inadequate because of the untrained staff, the limited access, and the lack of the Federal Supplement; 3) that the library did not provide access to the courts for those persons lacking the necessary literacy skills to use it; and 4) that the merits of the plaintiffs' cause of action, i. e., whether their only possible claims for relief had become moot, was not a proper consideration in determining whether to certify the class.

The district judge approved and adopted the findings of the magistrate, and he added that "there (was) no guarantee that the two remaining plaintiffs (would) continue to adequately represent the class" since they were no longer in jail and therefore had no common interest in the class. The district judge relied on the reasons given by the magistrate in holding that the issue was not capable of repetition, yet evading review, and the only modification he made was to acknowledge that the plaintiff Andrade "was also present in Bexar County Jail for an additional period of time in either 1976 or 1977." ⁸

The plaintiffs' appeal from the ruling of the district court on two grounds: 1) that class certification was improperly denied; and 2) that the class action seeking meaningful access to the courts is not moot.

I. Class Certification

The denial of class certification was essentially based on two grounds: 1) that the individual claims of the named plaintiffs were moot because they were no longer in jail; and 2) that the claim for relief on behalf of the class was moot because of the establishment of the library. The plaintiffs initially contend that it was improper to consider the alleged mootness of the claims of the class in determining whether to certify the action as a class action. We agree.

As this court stated in Miller v. Mackey International, Inc., 452 F.2d 424, 427 (5th Cir. 1971):

In determining the propriety of a class action, the question is not whether the . . . plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met.

Accord : Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178, 94 S.Ct. 2140, 2152-53, 40 L.Ed.2d 732 (1974); Weathers v. Peters Realty Corp., 499 F.2d 1197, 1201 (6th Cir. 1974). It is not appropriate to decide a case on its merits before determining whether it can be certified as...