# William Hardin Bogard, Jr. v. Thomas D. Cook, Former Superintendent of the Mississippi State Penitentiary > Court of Appeals for the Fifth Circuit · December 15, 1978 · 586 F.2d 399 URL: https://www.frixlaw.com/law-library/cases/9465229 ## Case - **Full name:** William Hardin BOGARD, Jr., Plaintiff-Appellant, v. Thomas D. COOK, Former Superintendent of the Mississippi State Penitentiary, Et Al., Defendants-Appellees - **Court:** Court of Appeals for the Fifth Circuit - **Decided:** December 15, 1978 - **Citations:** 586 F.2d 399; 1978 U.S. App. LEXIS 6984 - **Precedential status:** Published - **Opinion:** Concurrence by Vance - **Judges:** Vance, Clark, Fay - **Cited by:** 126 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9465229 ## How later opinions describe it (automated extraction) - finding that case would probably not have .been certifiable under Rule 23(b)(3) if money damages had been sought for each member of the class, because “[g]iven the lack of common questions of fact as to many of those claims, and the unmanageability of the suit had they been in… - finding that case would probably not have been certifiable under Rule 23(b)(3) if money damages had been sought for each member of the class, because “[g]iven the lack of common questions of fact as to many of those claims, and the unmanageability of the suit had they been inc… - recognizing that a prisoner class action does not bar an individual prisoner's subsequent suit for damages, where the class representatives sought only equitable relief, where prisoners had insufficient notice of their right to seek individual monetary damages, and where joind… - holding that class action seeking equitable relief did not bar subsequent individual suit for damages where class action notice did not alert class members to possibility that they could seek individual damages and inclusion of individual damage claims would have made class ac… - finding that case would probably not have been certifiable under Rule 23(b)(3 ## Opinion text VANCE, Circuit Judge, Concurring in Result: I concur in the result expressed in the opinion of the court but I reach that result by a slightly different path. *422 Over fifty years ago the Supreme Court held, If the federal courts are to have the jurisdiction in class suits to which they are obviously entitled, the decree when rendered must bind all of the class properly represented. Supreme Tribe of Ben Hur v. Cauble, 255 U.S. 356 , 41 S.Ct. 338 , 65 L.Ed. 673 (1921). Bogard makes no claim that his interests were not adequately protected in Gates v. Collier, 349 F.Supp. 881 (N.D.Miss.1972), aff’d., 501 F.2d 1291 (5th Cir. 1974). He was an active participant in the prior case. Its legal and factual bases were virtually identical to those of the case now before the court. Although the class certification in Gates was under Rule 23(b)(1) and 23(b)(2), class members, including Bogard, were given actual written notice and the opportunity to exclude themselves. As Judge Clark’s opinion points out, 380 class members elected to opt out but Bogard did not make such an election. Under this state of facts I would hold that the doctrine of res judicata bars a second, money damage claim by Bogard covering the same period. See generally Gonzales v. Cassidy, 474 F.2d 67 (5th Cir. 1973); International Prisoners’ Union v. Rizzo, 356 F.Supp. 806 (E.D.Pa.1973). The separate claim involving the stabbing injury, which occurred after the evidence was closed in Gates, is not barred. With respect to that injury I agree that misconduct by Cook, Collier and Byars of the quality required to overcome their qualified immunity was not proved. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9465229. Public record. Not legal advice.