Baran et al v. NH Department of Corrections et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Paul Baran, et al.
v. 	Case No. 22-cv-44-SM
New Hampshire Department
of Corrections, et al.
Report and Recommendation
Paul Baran, who is an inmate at the New Hampshire State
Prison for Men and is proceeding pro se, filed an action seeking
class certification to challenge the defendants’ use of the
Inmate Recreation Fund. 	His filing is signed by ninety-five
other inmates. 	The defendants are the New Hampshire Department
of Corrections (“D.O.C.”) and the Commissioner of the D.O.C.,
Helen Hanks. 	The case was referred to the undersigned for
preliminary review pursuant to 28 U.S.C. § 1915(e)(2)(B) and
§ 1915A(a) and Local Rule 4.3(d)(1).
Standard of Review
The court may dismiss sua sponte an action brought by a pro
se inmate against prison officials if, among other things, the
plaintiff fails to allege facts that state a claim for relief.
§§ 1915(e)(2)(B) & 1915A(a); see also Lomax v. Ortiz-Marquez,
140 S. Ct. 1721, 1725 (2020). 	For purposes of deciding whether
the complaint states an actionable claim, the court takes the
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factual allegations, without legal conclusions, as true and
determines whether those facts are sufficient to state a
plausible cause of action. 	Hernandez-Cuevas v. Taylor, 723 F.3d
91, 102 (1st Cir. 2013); Machado v. Weare Police Dept., 494 F.
App’x 102, 105 (1st Cir. 2012). 	The court liberally construes a
pro se complaint, using a less stringent standard than would
apply to a pleading filed by a lawyer. 	Erickson v. Pardus, 551
U.S. 89, 94 (2007).
Discussion
Baran filed a document titled “MOTION: 	TO BE REGISTERED AS
A CLASS FOR A CLASS ACTION SUIT” that was docketed as both the
complaint (doc. no. 1) and as a motion for class certification
(doc. no. 2). 	The complaint and motion are signed by ninety-
five pro se inmates, along with Baran. 	In support, Baran states
that “[t]his action is taking place for misuse of a directed
fund, by the Commissioner Helen Hanks & the D.O.C. 	The account
in question is the Inmate Recreation Fund.” 	He asks that the
court grant him the right to sue on behalf of a class and order
the D.O.C to notify all inmates in all New Hampshire State
Prison facilities of their right to join the action or refuse to
become part of it.
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A. 	State a Claim
Federal Rule of Civil Procedure 8(a)(2) requires a
complaint to contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.” 	That
requirement means that to proceed a complaint at a minimum must
include factual allegations that give each “defendant fair
notice of what . . . the claim is and the grounds upon which it
rests.” 	Bell Alt. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Further, the factual allegations must be sufficient “to raise a
right to relief above the speculative legal.” 	Ocasio-Hernandez
v. Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. 2011).
Baran states that the D.O.C. and the Commissioner have
misused the Inmate Recreational Fund. 	He alleges no facts,
however, to show that any misuse might have occurred. 	Instead,
Baran focuses on his request to proceed as a class action and
states that “[a]s soon as we are deemed a class I will send the
motion for our Lawsuit.” 	Doc. 1, at 2. 	As such, Baran has not
stated a claim for relief that can proceed in this action.
B. 	Class Certification
Baran and the other ninety-five inmates who signed the
complaint are proceeding pro se. 	Although each of the
plaintiffs may bring a claim or claims on his own behalf, none
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may represent another inmate. 	28 U.S.C. § 1654; LR 83.2(d);
Herrera-Venegas v. Sanchez-Rivera, 681 F.2d 41, 42 (1st Cir.
1982). 	For that reason, a pro se inmate may not represent other
inmates in a class action. 	Mincy v. Deparlos, 497 F. App’x 234,
238, n.3 (3d Cir. 2012); Johnson v. Brown, 581 F. App’x 777, 781
(11th Cir. 2014); Khalil v. Laird, 353 F. App’x 620, 621 (2d
Cir. 2009).
C. 	Result
Baran and the other signers of the complaint have not
stated a cognizable claim. 	Because of their pro se status,
however, it is appropriate to allow the plaintiffs to file an
amended complaint that alleges facts to show that they have a
claim against the D.O.C. and/or the Commissioner. 	The motion
for class certification should be denied.
Conclusion
For the foregoing reasons, the motion for class
certification (doc. no. 2) should be denied. 	The plaintiffs
should be given thirty days to file an amended complaint, signed
by each pro se plaintiff who wishes to remain in the case or by
retained counsel, failing which the complaint (doc. no. 1)
should be dismissed without prejudice.
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Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. 	See Fed.
R. Civ. P. 72(b)(2). 	The fourteen-day period may be extended
upon motion. 	Only those issues raised in the objection to this
Report and Recommendation are subject to review in the district
court. 	See Sch. Union No. 37 v. United Natl Ins. Co., 617 F.3d
554, 564 (1st Cir. 2010). 	Any issues not preserved by such
objection(s) are precluded on appeal. 	See id. 	Failure to file
any objections within the specified time waives the right to
appeal the district court's order. 	See Santos-Santos v. Torres-
Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
May 3, 2022
cc: Paul Baran, pro se, et al.
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