One person, or a small group of people, can sue on behalf of all other people who are in the same situation. This is called a “class action.” The requirements for a class action are found in Rule 23 of the Federal Rules of Civil Procedure. Rule 23 is part of Title 28 of the United States Code (U.S.C.), which you can request from your law library. (Chapter Seven explains more about how to use statutes and law books.) We have summarized important parts of the rule below, but if you are thinking about bringing a class action you may want to read the exact words of Rule 23 yourself.
Rule 23(a) requires:
(1) The class must be so large that it would not be practical for everyone in it to bring the suit and appear in court;
(2) There must be “questions of law or fact common to the class;”
(3) The claims made by the people who bring the suit must be similar to the claims of everyone in the class; and
(4) The people who bring the suit must be able to “fairly and adequately protect the interests of the class.”
Additionally, Rule 23(b) requires that any one of (1), (2) or (3), below, is true:
(1) Bringing separate actions would create a risk of:
(A) different rulings for different individual class members that would lead to contradicting standards of conduct for the other side; or
(B) rulings for individuals that, as a practical matter, would dictate the rights of other class members not in the case or harm their ability to protect their interests;
(2) The party who doesn’t want it to be a class action has acted the same toward everyone in the class, so that final injunctive relief or declaratory relief is appropriate for the class as a whole; or
(3) The court finds that there are more questions of law or fact common to class members than questions affecting only individuals, and that a class action is better than an individual case for fairly and quickly deciding the case. The Court will consider:
(A) the class members’ interests in individually controlling the their own case;
(B) whether any other case about the same issue has already started by class members;
(C) whether it would be a good thing to keep all cases about the issue in one court; and
(D) whether the case will be hard to manage as a class action.
A class action has two big advantages. First, any court order will apply to the entire class. Anyone in the class can ask the court to hold the officials in contempt of court and fine or jail them if they disobey the court order. If the suit were not a class action, prisoners who were not a part of the suit would have to start a new suit if prison officials continued to violate their rights.
Second, a class action for injunctive relief cannot be dismissed as “moot” just because the prisoners who start the suit are released from prison or transferred to a prison outside the court’s jurisdiction, or because the prison stops abusing those particular prisoners. The case will still be alive for the other prisoners in the class. Sosna v. Iowa, 419 U.S. 393 (1975). “Moot” means that the problem you are complaining about has stopped happening, and is not likely to happen to you again. You can lose a case by it becoming “moot.” The problem of “mootness” is discussed more in Chapter Six, Section D.
A class action has one very big disadvantage. If you lose a class action, the court’s decision binds all the class members, so other prisoners who are part of the class cannot bring their own challenges.
In contrast, if you lose a suit that is not a class action, you merely establish a bad “precedent.” Other prisoners can still raise the same legal issues in another suit, and they may be able to convince a different judge to ignore or overrule your bad precedent. Chapter Seven explains how precedent works.
This is why the Federal Rules require that the people who bring a class action must be able to “fairly and adequately protect the interests of the class.” Protecting the interests of a class requires resources that are not available to prisoners, such as a staff of investigators, access to a complete law library, and the opportunity to interview potential witnesses scattered throughout the state. As a result, if a court decides that your case meets all the requirements for a class action, the court will appoint a lawyer to represent you and the class.
You can also start a suit under Section 1983 for yourself and a few other prisoners and send copies to some lawyers to see if they’ll help. If a lawyer agrees to represent you or the court appoints a lawyer, your lawyer can “amend” your legal papers to change your suit into a class action.
Chapter One, Section D, explains how to try and find a lawyer.
Chapter Five, Section C, Part 3 explains how to ask the court to appoint a lawyer to represent you.