Mitchem v. Melton, 15136

• Decision Date: 12 May 1981
• Docket Number: No. 15136,15136
• Parties: Terry Paul MITCHEM v. G. Kemp MELTON, etc.
• Court: West Virginia Supreme Court

Page 895

277 S.E.2d 895

167 W.Va. 21

Terry Paul MITCHEM v. G. Kemp MELTON, etc.

No. 15136.

Supreme Court of Appeals of West Virginia.

May 12, 1981.

Syllabus by the Court

1. Ordinarily an action under 42 U.S.C.A. § 1983 is appropriate where complaint is made to the conditions of confinement and not its duration.

2. An action based on 42 U.S.C.A. § 1983 can be maintained in our State courts to challenge prison conditions.

3. The Rules of Civil Procedure are available for an action filed under 42 U.S.C.A. § 1983.

4. There is no requirement for formal court certification of the appropriateness of a class action under Rule 23 of the West Virginia Rules of Civil Procedure nor is there any requirement in our Rule 23 as there is in Rule 23(c)(4) of the Federal Rules of Civil Procedure for the use of subclasses.

5. Whether the requisites for a class action exist rests within the sound discretion of the trial court.

6. An order denying class action standing under Rule 23 of the West Virginia Rules of Civil Procedure may be appealed by the party who asserts such class standing.

John Paul Kemp, Marshall & St. Clair and James W. St. Clair, Huntington, for appellant.

Jack Kessler, Asst. Pros. Atty., Kanawha County, Charleston, for appellee.

MILLER, Justice:

The principal issue on this appeal is the trial court's ruling that precluded the appellant from proceeding as a class action under Rule 23 of the West Virginia Rules of Civil Procedure. A collateral question is whether an order denying class status under Rule 23 is an appealable order.

The basis for the trial court's rejection of the class status was that it conceived the appellant's suit as a writ of habeas corpus. The court reasoned that since Rule 81(a)(5) ¹ excludes writs of habeas corpus from the ambit of the Rules of Civil Procedure, except as to Rules 5(b), 5(e) and 80, which are not material to the issue here, there was no right to have a habeas corpus class action. In order to determine this issue, we must review the appellant's complaint and particularly the relief sought to determine if it is a writ of habeas corpus or, as the appellant contends, if it is a civil rights action under 42 U.S.C.A. § 1983.

From the record, there is little doubt that the appellant's original pro se petition filed in this Court was styled as a writ of habeas corpus. It alleged in considerable factual detail a number of charges concerning the physical and living conditions of the Kanawha County Jail. We granted the writ, made it returnable to the Circuit Court of Kanawha County and appointed counsel to represent the appellant. ²

After his appointment counsel obtained leave to file an amended pleading which was filed on January 23, 1980, and was styled "Civil Action No. , Amended Petition for Habeas Corpus and Other Relief." In paragraph II allegations were made "(t)hat this action is properly brought as a class action pursuant to Rule 23 of the West Virginia Rules of Civil Procedure," and proceeded to list some six reasons why a class action was necessary. In paragraph VI, after asserting generally that the conditions of the Kanawha County Jail violated various enumerated provisions of the West Virginia and Federal Constitutions, there were listed some 24 specific charges of unlawful conditions.

The amended complaint concluded with a prayer for injunctive relief, to prohibit the continuation of the improper conditions, and for affirmative relief designed to correct the conditions. The appellant also requested in his prayer that the appellees supply the court with a plan to correct the conditions and, if they failed to take corrective action, for the court to appoint a receiver to manage the affairs of the jail.

After the amended complaint was filed the appellant also filed a set of Interrogatories and Request for Admissions. None of these discovery techniques was answered by the appellees.

In Rhodes v. Leverette, W.Va., 239 S.E.2d 136, 140-41 (1977), we discussed in some detail the type of relief available in a habeas corpus proceeding and noted that:

"The United States Supreme Court has made it clear that the writ of habeas corpus, because of its broad availability to challenge confinement contrary to the Constitution, cannot be limited to a particular form of remedial relief. Preiser v. Rodriguez, (411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973)); Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968); Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961)."

From a federal standpoint, Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), made the following statement on the difference between a habeas corpus proceeding and a federal civil rights suit under 42 U.S.C.A. § 1983 challenging prison conditions:

"(A) § 1983 action is a proper remedy for a state prisoner who is making a constitutional challenge to the conditions of his prison life, but not to the fact or length of his custody." 411 U.S. at 499, 93 S.Ct. at 1841, 36 L.Ed.2d at 455.

In Preiser, a § 1983 action was filed by state prison inmates to challenge the constitutionality of disciplinary action, taken against them by prison officials, which had deprived them of their good conduct time credits. The Supreme Court held that a § 1983 action could not be maintained because a writ of habeas corpus proceeding was the appropriate remedy when attacking the length of their confinements. The Court in Preiser specifically stated: "But we need not in this case explore the appropriate limits of habeas corpus as an alternate remedy to a proper action under § 1983." 411 U.S. at 500, 93 S.Ct. at 1841, 36 L.Ed.2d at 456. Thus, Preiser may be viewed as establishing that ordinarily a § 1983 action is appropriate where complaint is made to the conditions of confinement and not its duration.

The distinction, however, between the conditions of confinement and its length is not talismanic. ³ We have entertained writs of habeas corpus where prison inmates were claiming that the conditions of their confinement amounted to cruel and unusual punishment. E. g., Harrah v. Leverette, W.Va., 271 S.E.2d 322 (1980); State ex rel. K. W. v. Werner, W.Va., 242 S.E.2d 907 (1978); State ex rel. Pingley v. Coiner, 155 W.Va. 591, 186 S.E.2d 220 (1972). In Harrah we also recognized that an action based on 42 U.S.C.A. § 1983 can be maintained in our State courts to challenge prison conditions:

"It is also clear that 42 U.S.C. § 1983 actions may be pursued in our state courts. See, Terry v. Kolski, 78 Wis.2d 475, 254 N.W.2d 704 (1977); Kish v. Wright, Utah, 562 P.2d 625 (1977); Colvin v. Bowen, Ind.App., 399 N.E.2d 835 (1980); Rzeznik v. Chief of Police of Southampton, 374 Mass. 475, 373 N.E.2d 1128 (1978); Rosacker v. Multnomah County, 43 Or.App. 583, 603 P.2d 1216 (1979); Ingram v. Moody, Ala., 382 So.2d 522 (1980); Adler v. Los Angeles Unified School Dist., 98 Cal.App.3d 280, 159 Cal.Rptr. 528 (1979); Tyler v. Whitehead, Mo.App., 583 S.W.2d 240 (1979)." W.Va., 271 S.E.2d at 332.

To paraphrase Preiser, we need not for the purposes of this case explore the appropriate limits of habeas corpus as an alternative to an action under § 1983. What is before us is a suit which does bear the hallmark of a § 1983 action since it challenges the conditions of confinement and does not seek a determination that the prisoner is entitled to an immediate or quicker release from confinement. Certainly, the use by counsel for appellant of discovery techniques and class action status provided for in the Rules of Civil Procedure demonstrates an intention to utilize a § 1983 action. Consequently, we hold that the trial court was in error in treating the case as a proceeding for writ of habeas corpus and therefore outside the Rules of Civil Procedure.

Other state courts have permitted a § 1983 action to be utilized to challenge conditions of confinement. E. g., Williams v. Davis, 386 So.2d 415 (Ala.1980); Brown v. Pitchess, 13 Cal.3d 518, 531 P.2d 772, 119 Cal.Rptr. 204 (1975); Wesson v. Johnson, 195 Colo. 521, 579 P.2d 1165 (1978); Dickerson v. Warden, Marquette Prison, 99 Mich.App. 630, 298 N.W.2d 841 (1980); MacNeil v. Klein, 141 N.J.Super. 394, 358 A.2d 488 (1976); Cooper v. Morin, 49 N.Y.2d 69, 399 N.E.2d 1188, 424 N.Y.S.2d 168 (1979); Commonwealth ex rel. Saunders v. Creamer, 464 Pa. 2, 345 A.2d 702 (1975); Terry v. Kolski, 78 Wis.2d 475, 254 N.W.2d 704 (1977). In Beaver v. Chaffee, 2 Kan.App.2d 364, 579 P.2d 1217 (1978), the court recognized that habeas corpus was not the only means of testing conditions of confinement and sanctioned the use of declaratory judgment and injunctive relief.

Having established that the suit was in the nature of a § 1983 action, there can be little doubt that the Rules of Civil Procedure are available for an action filed under 42 U.S.C.A. § 1983. There are numerous cases in both federal and state courts where class actions under Rule 23 were brought under § 1983 to change prison conditions. Jones v. Diamond, 636 F.2d 1364 (5th Cir. 1981); Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754 (3rd Cir. 1979); Feeley v. Sampson, 570 F.2d 364 (1st Cir. 1978); Zurak v. Regan, 550 F.2d 86 (2nd Cir. 1977), cert. denied, 433 U.S. 914, 97 S.Ct. 2988, 53 L.Ed.2d 1101; Wesson v. Johnson, 195 Colo. 521, 579 P.2d 1165 (1978); Beaver v. Chaffee, 2 Kan.App. 364, 579 P.2d 1217 (1978); MacNeil v. Klein, 141 N.J.Super. 394, 358 A.2d 488 (1976); Cooper v. Morin, 49 N.Y.2d 69, 399 N.E.2d 1188, 424 N.Y.S.2d 168 (1979). We, therefore, conclude that the trial court was in error in holding that a class action under Rule 23 could not be utilized by the appellant in this case.

While the primary basis of the trial court's holding was that a class action was not available in a habeas corpus proceeding, it did go on to conclude that even if Rule 23 was applicable the class was drawn too broadly and, therefore, refused certification. This raises the further question as to whether the denial...