                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                        April 11, 2006
                       UNITED STATES COURT OF APPEALS                Elisabeth A. Shumaker
                                                                        Clerk of Court
                                  TENTH CIRCUIT



 BRAD SKINNER, on his own behalf
 and on behalf of all other persons
 similarly situated,

          Plaintiff,

 DERRICK R. PARKHURST,

          Appellant,

 v.
                                                       No. 05-8098
 JUDITH UPHOFF, Director, Wyoming
                                                 (D.C. No. 02-CV-033-B)
 Department of Corrections
                                                        (D. Wyo.)
 (“WDOC”); VANCE EVERETT,
 Complex Administrator, Wyoming
 State Penitentiary (“WSP”); JAMES
 HEWITT, Security Officer, WSP;
 DAVID EBELL, Security Officer,
 WSP, in his individual and official
 capacities; SCOTT ABBOTT, Warden,
 WSP; ROBERT E. ORTEGA,
 Director, WDOC, in his official
 capacity,

          Defendants-Appellees.


                           ORDER AND JUDGMENT *



      After examining appellant’s brief and the appellate record, this panel has
      *

determined unanimously that oral argument would not materially assist the
                                                                     (continued...)
Before HARTZ, EBEL, and TYMKOVICH, Circuit Judges.


      This pro se appeal challenges the district court’s denial of a motion for

relief from judgment and other various motions filed by ten members of a civil

rights class consisting of all current and future inmates at the Wyoming State

Penitentiary (“WSP”). The ten class members filed the motions following the

grant of summary judgment and award of injunctive and declaratory relief in

favor of the plaintiff class members generally. One of those ten class members,

Derrick Parkhurst, appeals. Exercising jurisdiction pursuant to 28 U.S.C. § 1291,

we AFFIRM.

I. BACKGROUND

      Mr. Parkhurst was a member of a certified class of inmates that included all

current and future inmates of WSP in an action challenging conditions at WSP.

The class asserted various civil rights claims against various Wyoming

corrections officials (collectively, “Defendants”), seeking injunctive relief

requiring Defendants to take all necessary and proper steps to protect the class


      *
        (...continued)
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. This
Order and Judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be
cited under the terms and conditions of 10th Cir. R. 36.3.

                                        -2-
from assaults by other inmates. Stephen Pevar, an attorney employed by the

American Civil Liberties Union Foundation, represented the class.

      On November 27, 2002, the district court granted summary judgment in

favor of the plaintiff class members, awarding injunctive and declaratory relief.

The court then approved a remedial plan, which sought to improve inmate safety

at WSP by requiring Defendants to: 1) adequately supervise and train WSP staff;

2) develop an effective internal review process for reporting policy violations;

and 3) discipline malfeasant employees.

      On August 18, 2005, Derrick R. Parkhurst and nine other class members

filed a pro se motion for relief from judgment, asking the district court to set

aside its grant of summary judgment and to re-open the case for litigation on the

issue of overcrowding at WSP because the class attorney had failed to notify the

class members of the underlying class action suit. They also requested that the

district court recuse itself and appoint new class counsel. After a hearing, the

district court denied the motions. This pro se state prisoner appeal, filed by Mr.

Parkhurst, followed.

II. DISCUSSION

      This appeal raises a very narrow issue: whether the district court erred in

denying the motions for relief from judgment, the motion for appointment of new




                                          -3-
counsel, or the motion for recusal with regard only to the underlying civil rights

class action. We review each of those denials in turn.

      A.     Rule 60(b) Motion for Relief from Judgment

      On appeal, Mr. Parkhurst contends that the district court erred by denying

his and nine other class members’ request for relief from the district court’s

November 27, 2002 judgment in favor of the plaintiff class members.

Specifically, he argues that he and these other class members were given

inadequate notice at every critical stage of the proceeding. He argues that, due to

this lack of notice, the judgment in favor of the plaintiff class members does not

adequately address the problem of overcrowding at WSP. He therefore contends

that he and the other prisoners should not be bound by the district court’s

judgment. Reviewing the district court’s denial for an abuse of discretion, Sorbo

v. United Parcel Serv., 432 F.3d 1169, 1177 (10th Cir. 2005), we affirm the

district court’s decision.

             1. Notice of critical stages of the class action proceedings

      Federal Rule of Civil Procedure 23 governs class actions in federal court.

That rule expressly requires notice only in actions certified under Rule 23(b)(3);

that is, where damages are being sought for the class. See Fed. R. Civ. P.

23(c)(2)(B). Where, as here, a class is certified under Rule 23(b)(2), notice is




                                         -4-
discretionary. 1 See Fed. R. Civ. P. 23(c)(2)(A) (“For any class certified under

Rule 23(b)(1) or (2), the court may direct appropriate notice to the class.”)

(emphasis added). Thus, Rule 23 did not require that any notice be given. Shook

v. El Paso County, 386 F.3d 963, 972 (10th Cir. 2004) (quotations omitted). 2

      The district court in this case did not direct that any notice be given to the

class in this case. The Committee Note to Rule 23 cautions that the district court




      1
         Mr. Parkhurst alleges that courts appear to be in disarray on the
requirement of notice to class members in cases brought under Rule 23(b)(1) or
(b)(2). The majority of cases to which we presume Mr. Parkhurst is referring
were all decided before Rule 23 was amended in 2003 and the provision in Rule
23(c)(2)(A) added. Prior to that time, Rule 23(c)(2) expressly dealt only with
notice in Rule 23(b)(3) actions. As a result, prior to the 2003 amendments, courts
reached inconsistent results as to whether members of classes certified under
23(b)(1) or 23(b)(2) must also be given notice.
       We note that even after the 2003 amendments some courts have expressed
concerns regarding the constitutionality of not providing notice to class actions
for monetary relief that are certified under Rule 23(b)(2). Reeb v. Ohio Dep’t of
Rehab. and Corr., 435 F.3d 639, 658 (6th Cir. 2006) (Keith, J., dissenting); see
also In re Monumental Life Ins. Co., 365 F.3d 408, 416-17 (5th Cir. 2004)
(“Though rule 23 does not explicitly extend these safeguards to rule 23(b)(2)
classes, due process requires the provision of notice where a rule 23(b)(2) class
seeks monetary damages.”). Here, however, the plaintiff class members sought
and the court awarded only injunctive relief.
      2
          Notice was also not required under Fed. R. Civ. P. 23(e) because this
case was resolved by summary judgment, not by a settlement or compromise. See
Fed. R. Civ. P. 23(e)(1)(B) (“The court must direct notice in a reasonable manner
to all class members who would be bound by a proposed settlement, voluntary
dismissal, or compromise.”).



                                        -5-
must exercise the discretion granted by Rule 23(c)(2)(A) with care, for several

reasons:

       there may be less need for notice than in a (b)(3) class action. There is
       no right to request exclusion from a (b)(1) or (b)(2) class. The
       characteristics of the class may reduce the need for formal notice. The
       cost of providing notice, moreover, could easily cripple actions that do
       not seek damages. The court may decide not to direct notice after
       balancing the risk that notice costs may deter the pursuit of class relief
       against the benefits of notice.

Fed. R. Civ. P. 23, advisory committee’s note (2003 amendments). Here, the

plaintiff class members sought only injunctive relief in their civil rights class

action suit, and the district court stated that it “did not see fit to require notice to

all potential class members.” Accordingly, solely for purposes of the class action,

we conclude that the district court did not abuse its discretion under Rule 23 by

not directing that notice of the class action proceedings be given to members of

this (b)(2) class. As a result, we also conclude that the district court did not

abuse its discretion by denying Mr. Parkhurst’s Rule 60(b) motion for relief from

judgment.

       Our decision, however, is very limited. We hold only that, with regard to

the underlying class action in this case, the district court did not abuse its

discretion by denying Mr. Parkhurst or the other nine members of the class relief

from the court’s judgment in favor of the plaintiff class members. We do not

address whether the district court’s judgment has any res judicata effect on future


                                           -6-
claims members of the class may decide to raise in a subsequent proceeding. 3 We

therefore also do not address whether due process concerns regarding the

adequacy (or lack thereof) of notice to the class members may itself preclude any

res judicata effect. Under the circumstances of this case, we believe that those

issues would be more appropriately resolved in a proceeding where one of the

class members, if one of the members chose to do so, actually asserts such a claim

against the Defendants, rather than attempting to resolve such hypothetical issues

on appeal from the denial of a motion for relief from judgment.

      In short, we conclude only that the district court did not abuse its discretion

by denying Mr. Parkhurst’s Rule 60(b) motion for relief from judgment, and we

affirm.

            2.     Notice of hearing on Rule 60(b) motion for relief from
                   judgment

      Mr. Parkhurst argues on appeal that the district court erred in forcing him

to attend the hearing on the Rule 60(b) motion for which he was given only one




      3
         We note that the district court stated, in its Rule 60(b) order denying Mr.
Parkhurst and the nine other members of the class relief from judgment in favor
of the plaintiff class members, that “[o]vercrowding is not, and never has been, an
issue in this case.” Additionally, the Government conceded in its brief on appeal
that “[t]he district court’s summary judgment order did not address the merits of
the overcrowding issue. Therefore, the first element of res judicata is not
present, so res judicata does not apply.” These issues will need to be resolved in
a relevant subsequent proceeding.

                                        -7-
hour’s notice. 4 At the hearing, Mr. Parkhurst protested the “surprise” of the

hearing, claiming that he did not “even know what we’re . . . hearing.” We agree

with the Defendants that the appropriate remedy would have been to request a

recess or a continuance to allow Mr. Parkhurst to prepare. See Faigin v. Kelly,

184 F.3d 67, 85 (1st Cir. 1999) (“[T]he most efficacious remedy for litigatory

surprise is to seek a continuance at the time the surprise emerges.”). Yet Mr.

Parkhurst, a pro se movant, requested neither a recess nor a continuance. In any

event, we conclude that Mr. Parkhurst was not prejudiced because, for the same

reasons discussed earlier, his motion was meritless.

      B.     Class Counsel

      Mr. Parkhurst also challenges the representation provided by Mr. Pevar, the

class counsel. First, Mr. Parkhurst argues that the district court erred in

permitting Mr. Pevar to argue against the Rule 60(b) motion. Second, Mr.

Parkhurst argues that the district court erred by refusing to appoint new counsel

because Mr. Pevar failed to give notice to the class members and argued against

re-opening the civil rights class action suit at the hearing on the Rule 60(b)




      4
         It is not clear from the record whether Mr. Parkhurst received one or two
hours’ notice of the hearing; however, because we conclude that Mr. Parkhurst
was not prejudiced by the limited notice, we will assume for purposes of our
analysis that he was given only an hour’s notice.

                                         -8-
motion. We reject both of these arguments and affirm the district court’s

decision.

             1.    Mr. Pevar’s presentation of arguments refuting Parkhurst
                   claims in the Rule 60(b) motion for relief from judgment

      Mr. Pevar, in responding to the motion for relief from judgment, argued

that he had adequately represented the class and that Mr. Parkhurst and the other

nine class members were not entitled to the relief they sought. On appeal, Mr.

Parkhurst argues that the district court erred in permitting Mr. Pevar to make

these arguments because they went against the interests of those class members

who jointly filed the Rule 60(b) motion. We note first that Mr. Parkhurst did not

object to Mr. Pevar’s legal arguments at the hearing on that motion. Additionally,

assuming that permitting Mr. Pevar to assert his legal arguments at the hearing

was error, Mr. Parkhurst was not prejudiced. Mr. Pevar’s arguments were not

detrimental to any of the class members because, for the reasons discussed earlier,

the motion for relief from judgment was meritless.

             2. Appointment of new counsel

      Mr. Parkhurst also argues that new class counsel should have been

appointed under Fed. R. Civ. P. 23(g) and 28 U.S.C. § 1915. Assuming Mr.

Parkhurst, who was not the designated plaintiff in the underlying class action suit,

may raise such a request, we conclude that the district court correctly denied it.



                                        -9-
We therefore also deny Mr. Parkhurst’s renewed motion on appeal for

appointment of counsel.

      Rule 23(g) requires appointment of class counsel where a class has been

certified under Rule 23, unless otherwise provided by statute. See also Rule

23(c)(1)(B) (requiring appointment of class counsel when district court certifies

class). In this case, the district court appointed Mr. Pevar. According to Mr.

Parkhurst, however, Mr. Pevar has done “a woefully inadequate job in this case;”

failed to “take his professional duties seriously;” “was derelict to the point where

it could be argued that he sold his clients out;” “was grossly negligent;” “did not

represent the Plaintiff class at all;” and attempted to “lead [Mr. Parkhurst] down

the garden path.” Mr. Parkhurst therefore contends that the district court erred by

refusing to appoint new counsel to represent the inmates of WSP.

      We reject Mr. Parkhurst’s characterization of Mr. Pevar’s representation

and instead agree with the district court’s characterization. As the district court

described, “Mr. Pevar has done a tremendous job representing the inmates of

WSP in this case. He has been a zealous advocate from the beginning and, as a

result of such efforts, has been a tremendous force in improving the conditions at

WSP.” The district court therefore ruled that “Mr. Pevar’s representation [was]

more than adequate in this case” and found “no reason to replace [him] with

alternate counsel.” Because we agree, and because we have additionally rejected


                                        - 10 -
Mr. Parkhurst’s claim that Mr. Pevar failed to give adequate notice to the class

members and improperly argued against the class members’ interests, we affirm

the district court’s refusal to appoint new class counsel. For the same reasons, we

also deny Mr. Parkhurst’s renewed motion on appeal for appointment of counsel

to represent the inmates of WSP in this matter.

      To the extent that Mr. Parkhurst also argues that counsel should have been

appointed to represent him in arguing the Rule 60(b) motion and/or other various

motions, we affirm the district court’s refusal. 5 In McCarthy v. Weinberg, 753

F.2d 836 (10th Cir. 1985), we held that 28 U.S.C. § 1915(d) vests the district

court with considerable discretion whether to appoint counsel. “Only in those

extreme cases where the lack of counsel results in fundamental unfairness will the

district court’s decision be overturned.” Id. at 839. In determining whether to

appoint counsel, the district court must consider “the merits of the litigant’s

claims, the nature of the factual issues raised in the claims, the litigant’s ability to

present his claims, and the complexity of the legal issues raised by the claims.”

Long v. Shillinger, 927 F.2d 525, 527 (10th Cir. 1991). Because we have found

all of Mr. Parkhurst’s motions before the district court to be meritless, we hold



      5
         We note that Mr. Parkhurst and the nine other members of the class have
neither been certified as a separate class nor requested class certification, and
thus they do not independently invoke the requirements of appointed class counsel
under either Rule 23(c)(1)(B) or 23(g).

                                         - 11 -
that he has not successfully demonstrated that his is an extreme case meriting an

appointment of counsel. Accordingly, the district court did not abuse its

discretion, and we therefore affirm the district court’s refusal to appoint counsel

under § 1915.

      C.     Recusal of the District Court Judge

      Mr. Parkhurst contends that the district court should have recused himself

from the proceedings underlying this appeal. “We review the denial of a motion

to recuse for abuse of discretion . . . .” Higganbotham v. Okla. ex rel. Okla.

Transp. Comm’n, 328 F.3d 638, 645 (10th Cir. 2003). We cannot say that the

district judge’s decision not to recuse himself in this case was “manifestly

unreasonable, much less arbitrary, capricious, or whimsical.” Id.

      Even if it were an abuse of discretion, we would conclude that the error

was harmless. “In deciding whether a violation of [28 U.S.C.] § 455 is harmless,

we consider the risk of injustice to the parties in the particular case, the risk that

the denial of relief will produce injustice in other cases, and the risk of

undermining the public’s confidence in the judicial process.” Id. at 645-46

(quotations, alterations omitted). Mr. Parkhurst’s arguments for recusal rest

primarily on the fact that the district court judge failed to give the class members

notice and permitted Mr. Pevar to argue against the Rule 60(b) motion. Having

rejected both of those arguments, we conclude that none of the risks outlined in


                                         - 12 -
Higganbotham is present in this case. Thus, an error by the district court judge in

not recusing himself would have been harmless under the circumstances of this

case.

III. CONCLUSION

        For the foregoing reasons, we AFFIRM the district court’s denial of the

Rule 60(b) motion for relief from judgment; AFFIRM the district court’s denial of

the motion for appointment of new counsel and DENY the renewed motion on

appeal for appointment of counsel; AFFIRM the district court’s denial of the

motion for recusal of the district court judge; and DENY the request for

expansion of the record.

        We remind Mr. Parkhurst that, although the district court granted him in

forma pauperis status, he remains obligated to continue making partial payments

until the entire fee is paid. We further remind him of the need to pay past filing

fees or risk having his future appeals dismissed.



                                       ENTERED FOR THE COURT



                                       David M. Ebel
                                       Circuit Judge




                                        - 13 -
