     11-1430(L)
     Kimber v. Tallon

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 26th day of February, two thousand fourteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                RAYMOND J. LOHIER, JR.,
 8                CHRISTOPHER F. DRONEY,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       KEVIN KIMBER,
13                Plaintiff-Appellant,
14
15                      -v.-                                             11-1430(L)
16                                                                       11-1554(Con)
17
18       KEITH TALLON, Superintendent, Southern
19       State Correctional Facility,
20       individually and in his official
21       capacity, CELESTE GIRRELL,
22       Superintendent, Northern State
23       Correctional Facility, individually
24       and in her official capacity, ROBERT
25       HOFMANN, JOHN GORCZYK, KATHLEEN
26       LANMAN, MICHAEL O’MALLEY, ANITA
27       CARBONELL, STUART GLADDING, DANIEL
28       FLORENTINE, RAYMOND FLUM, CAROL

                                                  1
 1   CALLEA, ANDREW PALLITO, Commissioner,
 2   Vermont Department of Corrections,
 3   individually and in his official
 4   capacity,
 5             Defendants-Appellees,
 6
 7   JACOB SEXTON, and all other inmates
 8   similarly situated, RICHARD PAHL, and
 9   all others similarly situated, JOSE
10   TORRES, and all others similarly
11   situated, DANIEL MUIR, and all others
12   similarly situated, JAMES ANDERSON,
13   and all others similarly situated,
14   DAVID MCGEE, and all other inmates
15   similarly situated,
16            Plaintiffs.
17   - - - - - - - - - - - - - - - - - - - -X
18
19   FOR APPELLANT:             TIMOTHY W. HOOVER (William J.
20                              Simon, on the brief), Phillips
21                              Lytle LLP, Buffalo, New York.
22
23   FOR APPELLEES:             DAVID MCLEAN, on behalf of
24                              William H. Sorrell, Attorney
25                              General for the State of
26                              Vermont, Waterbury, Vermont.
27
28        Appeal from a judgment of the United States District
29   Court for the District of Vermont (Murtha, J.).
30
31        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
32   AND DECREED that the judgment of the district court be
33   VACATED AND REMANDED.
34
35       Kimber, on behalf of a class of Vermont prisoners,

36   appeals from the judgment of the United States District

37   Court for the District of Vermont (Murtha, J.), granting

38   summary judgment dismissing his claim that 24-hour security

39   lighting in the cells violates the Eighth Amendment’s

40   prohibition against cruel and unusual treatment.   The


                                  2
1    district court appointed the Prisoner Rights Office (“PRO”)

2    of the Vermont Defender General to serve as class counsel.

3    Kimber, as a class representative, argues here (and in the

4    district court) that the PRO’s performance was deficient.

5    We assume the parties’ familiarity with the underlying

6    facts, the procedural history, and the issues presented for

7    review.

8        The state contests Kimber’s standing to represent the

9    class in this appeal because he is pro se and unable to

10   understand the complex issues in the case.     Generally, it is

11   inappropriate for a pro se litigant to represent the

12   interests of a class.     See, e.g., Hagan v. Rogers, 570 F.3d

13   146, 158-59 (3d Cir. 2009).     However, Kimber appears before

14   us with counsel.     The consequences of disallowing Kimber

15   from challenging the PRO’s representation are also troubling

16   when the class counsel has abandoned any appeal and the

17   class consists of inmates who may otherwise have trouble

18   retaining counsel.     We conclude Kimber has standing to raise

19   the issues before us.

20       The state also argues that Kimber’s appeal was mooted

21   when he was released from incarceration.     While release

22   might moot Kimber’s individual claim for injunctive relief,

23   his release did not occur until after the class was

24   certified, and “class certification will preserve an

                                     3
1    otherwise moot claim.”    Comer v. Cisneros, 37 F.3d 775, 798

2    (2d Cir. 1994).    The state contends that the district court

3    erred in the initial certification of the class, since not

4    all of the named plaintiffs were subjected to 24-hour

5    security lighting at the time of certification.    The

6    district court properly concluded, however, that the

7    prisoners’ claims are “inherently transitory,” such that the

8    class certification relates back to the filing of the

9    complaint.   See Amador v. Andrews, 655 F.3d 89, 100-01 (2d

10   Cir. 2011); see also Muhammad v. N.Y.C. Dep’t of Corr., 126

11   F.3d 119, 123 (2d Cir. 1997) (noting, in a prison conditions

12   case, that there is an exception to the mootness doctrine

13   “generally invoked to preserve a class action in which some

14   members of the class retain a cognizable interest in the

15   outcome after the claim of the named representative has

16   become moot”).    As a result, the class claim is not moot.

17       We review a district court’s appointment and

18   supervision of class counsel for abuse of discretion.     See

19   Maywalt v. Parker & Parsley Petroleum Co., 67 F.3d 1072,

20   1078-79 (2d Cir. 1995); Foe v. Cuomo, 892 F.2d 196, 198 (2d

21   Cir. 1989) (“[T]he question of whether the district judge

22   abused his discretion in supervising the counsel before him

23   must be considered in light of the judge’s obligation to

24   insure that the plaintiff class is adequately represented

                                    4
1    throughout the litigation.”).       In appointing the PRO, the

2    district court failed to address the mandatory factors set

3    forth in Fed. R. Civ. P. 23(g).       The court therefore did not

4    consider the PRO’s inexperience litigating class actions or

5    under the Federal Rules of Civil Procedure more generally

6    (such as discovery requirements).       Moreover, the court was

7    aware at the time of appointment–-and throughout the

8    litigation below--that the PRO lacked the resources

9    necessary to litigate this case properly.       The PRO’s

10   deficiencies as class counsel became more apparent as it

11   blew through filing deadlines, requested numerous filing

12   extensions, and failed to communicate with the named

13   plaintiffs.

14       The PRO generously volunteered to take on this case

15   after the earlier withdrawal of two other attorneys.

16   However, its lack of resources and its inexperience in

17   federal class actions are significant considerations.             We

18   recognize that the district court had few options, or none,

19   but we must conclude that it abused its discretion in

20   appointing and retaining the PRO as class counsel.          We,

21   therefore, vacate the judgment of the district court.             On

22   remand, the district court will consider an appropriate way

23   forward.   The law of the case doctrine does not foreclose

24   any option to achieve this goal–-including decertification

                                     5
1   of the class or appointing new class counsel for the

2   currently certified class.1

3       For the foregoing reasons, we hereby VACATE AND REMAND

4   the judgment of the district court.

5
6                                 FOR THE COURT:
7                                 CATHERINE O’HAGAN WOLFE, CLERK
8




        1
          We note that appointed counsel for appellants
    indicated to the Court at oral argument a willingness to
    accept an appointment to continue the representation if this
    Court vacated the district court’s grant of summary
    judgment. Of course, we leave this to the district court to
    consider on remand.
                                   6
