The Caged Potential of Using 23(b)(3) to Certify an Injunctive-Relief-Only Class
We like to write and talk about Missouri class action law. Prisons, not so much. But if there’s a class action decision involving the First Amendment, an inmate-authored publishing company named Caged Potential, and using 23(b)(3) to certify an injunctive-relief-only class, we’re all over it.
In Lane v. Lombardi, 2012 WL 5462932 (W.D. Mo. Nov. 8, 2012), a publishing company, Caged Potential, published a novel, So Far From Paradise. The book was an overnight hit at the Crossroads Correctional Facility, with nine inmates placing orders during the 2011 holiday season. Caged Potential attempted to send the books to the inmates, but Crossroads had seized the books – pursuant to its censorship policy – and never told Caged Potential that the books were seized. Trouble in paradise, indeed.
Thereafter, Caged Potential sued the Missouri Department of Corrections, claiming that the censorship policy deprives senders of due process under the Fourteenth Amendment because it does not give senders notice or the opportunity to appeal the censorship decisions. Caged Potential sought prospective relief under 42 U.S.C. § 1983 requiring Defendants to provide senders with publications notice and opportunity to be heard when material sent to inmates is censored or withheld.
The Court noted that in the prison-rights context, a class action seeking declaratory relief is an appropriate vehicle for civil rights actions, and certified the following class:
All current and future publishers, distributors, and authors of written materials, who mail books, publications, or other written materials to inmates incarcerated in prisons operated by MODOC.
The interesting quirk is this: while the Court acknowledged in the intro that Plaintiff was seeking “prospective relief” under Rule 23(b)(2), the Court analyzed certification under 23(b)(3) – without any discussion of 23(b)(2). Finding this unusual, we took a look for other decisions where courts have certified injunctive-relief-only classes under 23(b)(3) and found no cases that applied Rule 23(b)(3) for a purely injunctive/declaratory claim. Even the case quoted by the Court, stating that a class action is “an especially appropriate vehicle for civil rights actions” actually stated that a 23(b)(2) class action is appropriate vehicle for civil rights cases. See Coley v. Clinton, 635 F.2d 1364, 1378 (8th Cir. 1980).
Because we’ve never seen 23(b)(3) used to certify an injunctive-relief-only class, we called the Plaintiff’s counsel at the ACLU, who confirmed that Plaintiff sought certification only under 23(b)(2).