Neely, Justice:
The appellants appeal an order of the Circuit Court of Jefferson County dated 18 August 1981 dismissing the appellants’ action against the appellees as moot. We reverse.
The record indicates that appellants, Rissler, Lauer, Higgs and Smith originally filed a
pro se
petition styled as a writ of habeas corpus in the circuit court. That petition asserted as grounds for relief the conditions of confinement in the Jefferson County Jail.
Approximately two months after the petition was filed, the appellants sought a writ of mandamus from this Court to direct the circuit court judge to act on the petition. Prior to disposition of the mandamus proceeding, however, the judge recused himself and another judge was appointed to hear the case. Counsel was then appointed to represent the appellants.
After his appointment counsel prepared an amended petition. Paragraph II of the petition stated: “The petitioners pursuant to Rule 23 of the West Virginia Rules of Civil Procedure, hereby make this matter a class action, so that it shall henceforth be re-styled to denote the following as petitioners:
DONALD G. RISSLER, JR., FANE C. LAUER, ROGER L. HIGGS, and STEVEN R. SMITH,
Individually and On Behalf of All Other Inmates, Present and Future, of the Jefferson County, West Virginia Jail
Petitioners
Subsection 6 of paragraph I of the petition alleged that “[t]he prosecution of this matter as a class action would permit the matter to remain active until resolved, avoiding its becoming moot if all the present petitioners are released from jail.” Subsection 7 of the same paragraph asserted that the conditions alleged in the original petition violated several provisions of the West Virginia and United States Constitutions.
In paragraph III the petitioners asserted that the conditions in the Jefferson County Jail inflicted upon them irreparable harm and that the respondents “are therefore liable to the petitioners for the various types of relief afforded by 42 U.S.C. § 1983 et seq.” The amended complaint concluded with a prayer for affirmative action on the part of the respondents in correcting the alleged violations.
On 15 July 1981, the date set for trial, counsel for the petitioners tendered to the court the amended complaint and the respondents objected on the ground that they had received no notice of the amended petition. The court continued the matter for twenty (20) days to allow the respondents time to file responsive pleadings.
On 18
August 1981 the case came on for hearing. By order dated 24 August 1981 the court dismissed petitioner Rissler from the action
, found that none of the original petitioners (except Rissler) were still confined in the Jefferson County Jail, and concluded as a matter of law that the absence of any of the petitioners in the jail rendered the matters at issue moot.
The court then ordered that the action be dismissed without prejudice. It is from this final order that appeal is being taken.
The only issue for our determination is whether the action in itself is moot because three of the petitioners were released from jail and the fourth withdrew from the suit prior to disposition of the case on the merits.
Clearly this suit bears the hallmark of an action under 42 U.S.C. § 1983 since it challenges the conditions of confinement in the Jefferson County Jail and does not seek a determination that the petitioners are entitled to release from confinement.
Syllabus points 1 and 2 of
Mitchem v.
Melton, _ W.Va. _, 277 S.E.2d 895 (1981) state:
Ordinarily an action under 42 U.S.C.A. § 1983 is appropriate where complaint is made to the conditions of confinement and not its duration.
An action based on 42 U.S.C.A. § 1983 can be maintained in our State courts to challenge prison conditions.
We have not addressed the precise issue involved in this case but find ample and convincing authority from the United States Supreme Court and elsewhere that a class action will not become moot, even though the named petitioners’ status changes or they lose their stake in the outcome of the litigation, if the issue is capable of repetition and yet will evade review because all potential petitioners will inevitably experience a change in status. This issue was addressed in note 11 of
Gerstein v. Pugh,
420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), a case involving entitlement to judicial determination of probable cause for pretrial restraint of liberty.
At oral argument counsel informed us that the named respondents have been convicted. Their pretrial detention therefore has ended. This case belongs, however, to that narrow class of cases in which the termination of a class representative’s claim does not moot the claims of the unnamed members of the class. See
Sosna v. Iowa,
419 U.S. 393 [95 S.Ct. 553, 42 L.Ed.2d 532] (1975). Pretrial detention is by nature temporary, and it is most unlikely that any given individual could have his constitutional claim decided on appeal before he is either released or convicted. The individual could nonetheless suffer repeated deprivations, and it is certain that other persons similarly situtated will be detained under the allegedly unconstitutional procedures. The claim, in short, is one that is distinctly “capable of repetition, yet evading review.”
Similar mootness issues have arisen in other contexts. For instance, in
Roe v. Wade,
410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) the Supreme Court allowed a woman
representing a class to challenge the Texas criminal abortion laws even though her own pregnancy, which occurred in 1970, had been terminated. The Court noted that pregnancy is a classic justification for nonmootness under the “capable of repetition, yet evading review” rationale. In
Sosna v. Iowa,
419 U.S. 393, 95 S.Ct.
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Neely, Justice:
The appellants appeal an order of the Circuit Court of Jefferson County dated 18 August 1981 dismissing the appellants’ action against the appellees as moot. We reverse.
The record indicates that appellants, Rissler, Lauer, Higgs and Smith originally filed a
pro se
petition styled as a writ of habeas corpus in the circuit court. That petition asserted as grounds for relief the conditions of confinement in the Jefferson County Jail.
Approximately two months after the petition was filed, the appellants sought a writ of mandamus from this Court to direct the circuit court judge to act on the petition. Prior to disposition of the mandamus proceeding, however, the judge recused himself and another judge was appointed to hear the case. Counsel was then appointed to represent the appellants.
After his appointment counsel prepared an amended petition. Paragraph II of the petition stated: “The petitioners pursuant to Rule 23 of the West Virginia Rules of Civil Procedure, hereby make this matter a class action, so that it shall henceforth be re-styled to denote the following as petitioners:
DONALD G. RISSLER, JR., FANE C. LAUER, ROGER L. HIGGS, and STEVEN R. SMITH,
Individually and On Behalf of All Other Inmates, Present and Future, of the Jefferson County, West Virginia Jail
Petitioners
Subsection 6 of paragraph I of the petition alleged that “[t]he prosecution of this matter as a class action would permit the matter to remain active until resolved, avoiding its becoming moot if all the present petitioners are released from jail.” Subsection 7 of the same paragraph asserted that the conditions alleged in the original petition violated several provisions of the West Virginia and United States Constitutions.
In paragraph III the petitioners asserted that the conditions in the Jefferson County Jail inflicted upon them irreparable harm and that the respondents “are therefore liable to the petitioners for the various types of relief afforded by 42 U.S.C. § 1983 et seq.” The amended complaint concluded with a prayer for affirmative action on the part of the respondents in correcting the alleged violations.
On 15 July 1981, the date set for trial, counsel for the petitioners tendered to the court the amended complaint and the respondents objected on the ground that they had received no notice of the amended petition. The court continued the matter for twenty (20) days to allow the respondents time to file responsive pleadings.
On 18
August 1981 the case came on for hearing. By order dated 24 August 1981 the court dismissed petitioner Rissler from the action
, found that none of the original petitioners (except Rissler) were still confined in the Jefferson County Jail, and concluded as a matter of law that the absence of any of the petitioners in the jail rendered the matters at issue moot.
The court then ordered that the action be dismissed without prejudice. It is from this final order that appeal is being taken.
The only issue for our determination is whether the action in itself is moot because three of the petitioners were released from jail and the fourth withdrew from the suit prior to disposition of the case on the merits.
Clearly this suit bears the hallmark of an action under 42 U.S.C. § 1983 since it challenges the conditions of confinement in the Jefferson County Jail and does not seek a determination that the petitioners are entitled to release from confinement.
Syllabus points 1 and 2 of
Mitchem v.
Melton, _ W.Va. _, 277 S.E.2d 895 (1981) state:
Ordinarily an action under 42 U.S.C.A. § 1983 is appropriate where complaint is made to the conditions of confinement and not its duration.
An action based on 42 U.S.C.A. § 1983 can be maintained in our State courts to challenge prison conditions.
We have not addressed the precise issue involved in this case but find ample and convincing authority from the United States Supreme Court and elsewhere that a class action will not become moot, even though the named petitioners’ status changes or they lose their stake in the outcome of the litigation, if the issue is capable of repetition and yet will evade review because all potential petitioners will inevitably experience a change in status. This issue was addressed in note 11 of
Gerstein v. Pugh,
420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), a case involving entitlement to judicial determination of probable cause for pretrial restraint of liberty.
At oral argument counsel informed us that the named respondents have been convicted. Their pretrial detention therefore has ended. This case belongs, however, to that narrow class of cases in which the termination of a class representative’s claim does not moot the claims of the unnamed members of the class. See
Sosna v. Iowa,
419 U.S. 393 [95 S.Ct. 553, 42 L.Ed.2d 532] (1975). Pretrial detention is by nature temporary, and it is most unlikely that any given individual could have his constitutional claim decided on appeal before he is either released or convicted. The individual could nonetheless suffer repeated deprivations, and it is certain that other persons similarly situtated will be detained under the allegedly unconstitutional procedures. The claim, in short, is one that is distinctly “capable of repetition, yet evading review.”
Similar mootness issues have arisen in other contexts. For instance, in
Roe v. Wade,
410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) the Supreme Court allowed a woman
representing a class to challenge the Texas criminal abortion laws even though her own pregnancy, which occurred in 1970, had been terminated. The Court noted that pregnancy is a classic justification for nonmootness under the “capable of repetition, yet evading review” rationale. In
Sosna v. Iowa,
419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975), where the plaintiff in a class action challenged the duration of the Iowa residency requirement for divorce actions, the Supreme Court found no mootness problem even though the named plaintiff had become eligible to institute divorce proceedings before the case was decided. The Court reasoned that although the plaintiff’s claim had expired, the controversy was still alive for those unnamed persons in the class.
Also see, United States Parole Commission v. Geraghty,
445 U.S. 388, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980);
Dunn v. Blumstein,
405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1975);
McGill v. Parsons,
532 F.2d 484 (5th Cir. 1976).
The facts of the case before us are similar to those in
Gerstein v. Pugh, supra.
By its very nature a county jail is primarily a place for transient convicts waiting to be transferred to a state penitentiary and accused defendants waiting to go on trial. Granted, the county jails also house those who have been sentenced and are serving their time in the jail but these persons are limited in number.
We conclude that this is a situation that falls in the narrow class of cases where an action will not be mooted merely because the named representatives have been released from jail or have otherwise lost their status. Clearly, conditions in the Jefferson County Jail are affecting prisoners at this moment and will affect others in the future.
Accordingly, the judgment of the Circuit Court of Jefferson County is reversed and the case is remanded for further proceedings consistent with this opinion.
Reversed and remanded.