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PABON v. MCINTOSH

September 16, 1982

ANTONIO PABON, PABLO MARTINEZ, and JOSE BURGOS, Individually and on behalf of all others similarly situated
v.
CHARLES P. McINTOSH, JULIUS T. CUYLER, DANIEL SIMS, LARRY REES, NATHAN LEWIS, LAWRENCE LaROSE, COMMONWEALTH OF PENNSYLVANIA



The opinion of the court was delivered by: SHAPIRO

 SHAPIRO, District Judge.

 I. INTRODUCTION

 Named plaintiffs, Antonio Pabon, Pablo Martinez and Jose Burgos, inmates at the Pennsylvania State Correctional Institution at Graterford ("Graterford"), bring this action on behalf of themselves and all others similarly situated against the Commonwealth of Pennsylvania and various state *fn1" and prison *fn2" officials. Plaintiffs charge that their constitutional and civil rights were violated by some or all of the defendants. First, plaintiffs complain of certain defendants' refusal to allow a Catholic religious celebration on Three Kings Day as well as a banquet during National Puerto Rican Week.

 Second, plaintiffs assert that the Graterford Educational Program deprives Spanish speaking inmates of their rights because the various courses are taught only in English.

 Before us are plaintiffs' motion for class certification and cross-motions for summary judgment. *fn3" For the reasons which follow, plaintiffs' motion for class certification will be granted in part, plaintiffs' motion for summary judgment will be denied and defendants' motions for summary judgment will be granted.

 II. CLASS ACTION CERTIFICATION

 Plaintiffs move for class certification under Fed.R.Civ.P. 23(b) (2) of a class defined as "all Spanish speaking prisoners in the Graterford Prison." (Paper No. 37). Defendants oppose the motion as untimely and on the ground that the criteria mandated by Rule 23 have not been met.

 A. Timeliness of Certification Motion

 B. Fed.R.Civ.P. 23

 Rule 23(a) provides:

 
One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.

 The prerequisites of Rule 23(a) are mandatory. Alexander v. Gino's, Inc., 621 F.2d 71 (3d Cir.) (per curiam), cert. denied, 449 U.S. 953, 66 L. Ed. 2d 217, 101 S. Ct. 358 (1980).

 With regard to the banquet issue, an intra-class conflict appears. The standard of fair and adequate representation requires (a) that plaintiffs have no interests antagonistic to those of the class; and (b) that plaintiffs' attorney is capable. Wetzel v. Liberty Mutual Life Insurance Co., 508 F.2d 239, 247 (3d Cir.), cert. denied, 421 U.S. 1011, 44 L. Ed. 2d 679, 95 S. Ct. 2415 (1975). There is no question that plaintiffs are represented by an experienced and able court-appointed attorney.

 But plaintiffs seek to represent all Spanish speaking prisoners. Spanish speaking prisoners are a recognized group that prison regulations allow one banquet per year. Although plaintiffs term the Three Kings Day celebration a religious observance, prison authorities consider it a banquet if in addition to community or religious leaders individual guests of prisoners are to be invited. Plaintiffs assert a federal right to participate in both a Three Kings Day Catholic religious observance with individual guests and a Puerto Rican Week banquet with individual guests.

 There is a potential conflict within the proposed class between Catholic and non-Catholic Hispanic prisoners if in fact only one banquet per year is permissible. A sub-class of Catholic, Hispanic prisoners and another for their non-Catholic, Puerto Rican counterparts will not do for two reasons. First, the celebrants of National Puerto Rican Week may be either Catholic or non-Catholic, so an intra-sub-class conflict would still exist. Similarly, a Puerto Rican/non-Puerto Rican sub-class split will not suffice for Three Kings Day observers cross lines of national origin. Second, the sub-class of non-Catholic Puerto Rican prisoners would lack proper representation for each named plaintiff is a Catholic Puerto Rican. Accordingly, as intra-class conflict appears unavoidable, we decline to certify any class on this issue.

 With regard to prison courses taught only in English, plaintiffs' class definition is overbroad; Spanish speaking prisoners who speak and write English are not harmed by the suspect conduct. The class must be redefined to consist of those Spanish speaking prisoners at Graterford who cannot communicate effectively in English. As to this class, only named plaintiff Burgos has the requisite standing. Pabon and Martinez speak English and indeed have taken courses in that language. (Pabon deposition; Martinez deposition). They do not have "a sufficient stake in an otherwise justiciable controversy to obtain a judicial resolution of that controversy," Sierra Club v. Morton, 405 U.S. 727, 731, 31 L. Ed. 2d 636, 92 S. Ct. 1361 (1972); see Bronze Shields, Inc. v. New Jersey Department of Civil Service, 667 F.2d 1074, 1079 n.7 (3d Cir. 1981), cert. denied, 458 U.S. 1122, 73 L. Ed. 2d 1384, 102 S. Ct. 3510 (1982). Unless plaintiffs have a cause of action in their own right, they cannot be certified as representatives of a class. Sosna v. Iowa, 419 U.S. 393, 42 L. Ed. 2d 532, 95 S. Ct. 553 (1975). However, plaintiff Burgos who speaks only Spanish (Burgos deposition at 73) has standing to complain of courses taught only in English and he may represent this class. With this class in mind, we consider the other standards of Rule 23(a).

 The numerosity test is one of practicability of joinder. Impracticability is a subjective determination based on number, expediency and inconvenience of trying individual suits. Piel v. National Semiconductor Corp., 86 F.R.D. 357 (E.D.Pa. 1980); Wright and Miller, 7 Federal Practice and Procedure § 1762 (1972).

 The number of Hispanic prisoners is between 40 and 50 of whom between 30 and 40 cannot communicate effectively in English (Lewis deposition at 26; Pabon deposition at 46). Joinder of those 30 to 40 inmates would be impractical. See also, Newberg, 1 Class Actions, § 1105(g) at 177 (1977) (transient nature of class sometimes makes joinder impractical without regard to the number of persons already injured). We also consider relevant the difficulties and burdens imposed on the prisoners and the court by requiring joinder of individual actions. See, Newberg, supra, § 1105(f) at 176.

 A broad based allegation of civil rights violations typically presents common questions of law and fact. Nonetheless, we must pay careful attention to the prerequisites of Rule 23(a). East Texas Motor Freight, Inc. v. Rodriguez, 431 U.S. 395, 405, 52 L. Ed. 2d 453, 97 S. Ct. 1891 (1977); Gurmankin v. Costanzo, 626 F.2d 1132, 1135 (3d Cir. 1980). Plaintiffs here allege that the uni-lingual curriculum violates various constitutional amendments. These allegations present a common fact pattern and plaintiffs seek the same remedies on the basis of the same legal theories. The factual and legal stance of all members of the class is identical. The common question standard is satisfied.

 The typicality standard requires that the class representative be part of the class and possess the same interest and suffer the same injury as the class members. East Texas Motor Freight, supra 431 U.S. at 403; see generally, Bartelson, supra at 667-673. The factual and legal position of the class and its representative are identical. We do not find that the named plaintiff's claim is based on unique circumstances or legal theories which will receive disproportionate emphasis as compared with proposed class members. See, 7 Wright and Miller, supra, at § 1764; Alexander, supra. Where, as here, interests ...


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