Prisoner's Class Claims Live Even After He Was Moved

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By Perry Cooper

July 18 — A prisoner may continue to represent a class action alleging constitutional violations at a U.S. penitentiary even though he was moved from the facility, the Third Circuit held ( Richarson v. Dir. Fed. Bureau of Prisons, 2106 BL 227670, 3d Cir., No. 15-2876, 7/15/16 ).

“When individual claims for relief are acutely susceptible to mootness, a would-be class representative may, in some circumstances, continue to see class certification after losing his personal stake in the case,” Judge D. Brooks Smith wrote July 15 for the U.S. Court of Appeals for the Third Circuit.

Constitutional Violations Alleged

Sebastian Richardson, a former inmate at the U.S. Penitentiary at Lewisburg, alleged that prison policies violated his Fifth and Eighth Amendment rights.

He sought injunctive relief on behalf of all prisoners at the facility to prevent future constitutional violations.

The defendants argued Richardson couldn't represent the class because he was moved from the prison before a class was certified.

The Third Circuit held that Richardson may still represent the class even though his own claims became moot when he lost his personal stake in the litigation.

The court relied on its 2004 holding in Weiss v. Regal Collections, 385 F.3d 337 (3d Cir. 2004) (05 CLASS 694, 10/8/04). There the court said that when a plaintiff's individual claim for relief is “acutely susceptible to mootness” by the actions of a defendant, he may continue to represent the class after his own claim is mooted.

‘Fair Opportunity.'

The court found that this mootness exception survived the U.S. Supreme Court's holding in a pick-off mootness case, Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663 (2016) (17 CLASS 80, 1/22/16).

There, the Supreme Court held that a “class representative with a live claim of her own must be accorded a fair opportunity to show that certification is warranted.”

The corollary to that holding, the Third Circuit said, is that when a would-be class representative is not given a fair opportunity, “she should be permitted to continue seeking class certification for a some period of time after her claim has become moot.”

This holding should discourage the once-common practice of filing motions for class certification very early in class litigation, the court said.

Judges Thomas M. Hardiman and Richard Lowell Nygaard joined the opinion.

Pennsylvania Institutional Law Project represented Richardson.

The U.S. Attorney in Harrisburg, Pa., represented the prison.

To contact the reporter on this story: Perry Cooper in Washington at

To contact the editors responsible for this story: Steven Patrick at and Jeffrey D. Koelemay at

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